Judge Invalidates Software Patent, Citing Bilski

bfwebster writes "US District Court Judge Andrew Gilford (Central District of California) granted a summary judgment motion in DealerTrack v. Huber et al., finding DealerTrack's patent (US 7,181,427) — for an automated credit application processing system — invalid due to the recent In re Bilski court decision that requires a patent to either involve 'transformation' or 'a specific machine.' According to Judge Gilford's ruling, DealerTrack 'appears to concede that the claims of the '427 Patent do not meet the "transformation" prong of the Bilski test.' He then applied the 'specific machine' test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that 'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.' Judge Gilford analyzes the claims of the '427 patent, notes that they state that the 'machine' involved could be a 'dumb terminal' and a 'personal computer,' and then concludes: 'None of the claims of the '427 Patent require the use of a "particular machine," and the patent is thus invalid under Bilski.' DealerTrack apparently plans to appeal the ruling. Interesting times ahead."

Comments

Similar to Donald Knuth's Logic

[eldavojohn]

'claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.'

Sounds familiar to the kind of logic that Donald Knuth employs when discussing software patents. He tried reaching out to the EU Patent Office in an effort to avoid making algorithms patentable--he feels this has been a mistake in America. He recently sent the EU Patent Office Commissioner a 1994 letter he had originally sent to the United States Patent Office about patenting software. His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable. The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not. Knuth sums himself up nicely: 'Basically I remain convinced that the patent policy most fair and most suitable for the world will regard mathematical ideas (such as algorithms) to be not subject to proprietary patent rights. For example, it would be terrible if somebody were to have a patent on an integer, like say 1009, so that nobody would be able to use that number "with further technical effect" without paying for a license. Although many software patents have unfortunately already been granted in the past, I hope that this practice will not continue in future. If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace.'

Maybe the right way to approach this was to claim that general purpose processors are only capable of executing extremely complex mathematical algorithms--which should not be patentable. Therefor the software that runs on general purpose processors should not be patentable.

Re:Similar to Donald Knuth's Logic

[wrf3]

What is "non-mathematical software"?

Re:Similar to Donald Knuth's Logic

[Aristophrenia]

A first post that isn't a troll, flamebait, gnaa related, anti-semitic or jammed full over over-used, over-rated memes! Excellent, now /. let us see if we can keep this up. Please. For the love of all that is shiny, please!

Back on topic - I'm just not seeing why this would have been patent worthy in the first place and I am looking forward to the outcome.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Would mathematics still be copyrightable?
Because any piece of music can be written down as a series of bytes, which chained together can be written as a large integer.
In other words, I'm not so sure whether this logic can be followed, rigorously, without upsetting a lot of people.

Re:Similar to Donald Knuth's Logic

[eldavojohn]

What is "non-mathematical software"?

Well, I've read a lot of Knuth's stuff and though I don't see quite eye to eye with him, I definitely agree with his views on this. The source of the idea of non-mathematical software seems to come from patent attorney Eugene Quinn:

I have been criticized quite a lot for statements I have made that computer software is not the same as math, and I simply cannot back away from that. Nevertheless, as I have read through comments provided to Groklaw I am not so sure that my critics and I are as far apart on this position as one would belief.

And yes, he goes so far as to cite E. W. Dijkstra's three claims:

• So much for the care needed to keep the arguments manageable: we can summarize it by stating that in programming mathematical elegance is not a dispensable luxury, but a matter of life and death.
• The programmer applies mathematical techniques in an environment with an unprecedented potential for complication; this circumstance makes him methodologically very, very conscious of the steps he takes, the notations he introduces etc.
• Much more than the average mathematician he is explicitly concerned with the effectiveness of this argument, much more than the average mathematician he is consciously concerned with the mathematical elegance of his argument.

And he claims these statements do not invalidate his idea that non-mathematical software should be patentable! Knuth and probably 90% of software developers will argue that Quinn is either ignorant or insane.

And these are the people arguing the case and ensuring software patents stand. Worse yet, Eugene teaches the most popular patent bar review course in the US. Ignorance begets ignorance.

Re:Similar to Donald Knuth's Logic

[sir_eccles]

His logic isn't very good in my opinion.

There is no concept in any patent law be it US or EU that would allow a claim to an integer by itself of the form "Claim 1, the integer 1009". I don't really see the point of his argument by saying that.

Re:Similar to Donald Knuth's Logic

[ledow]

What's copyrightable got to do with patentable?

If I created a work of my own volition it is, almost by definition, copyrightable. Nothing else really matters. However, a *patent* is by no means "automatic" like copyright. You're lumping together extraordinarily disparate subjects, because lawyers do so and call it IP so that if they *don't* turn out to have a valid patent, they can pursue trademark and/or copyright claims without having to re-file.

However, it really irks me that someone in the EU bothered to distinguish between a general purpose processor and a fixed-purpose processor. At the end of the day, it's still nothing more than a set of transisitors, a set of boolean logical operations encoded in the arrangement of those transistors and a set of algorithms encoded in those boolean operations. I can't patent a "chip that does X", but I can patent a "chip that ONLY does X". It's just stupid.

Re:Similar to Donald Knuth's Logic

[MenThal]

His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

Re:Similar to Donald Knuth's Logic

[thedonger]

IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

If so, how is that different than making an online auction site, basically copying the tried and true functionality of ebay? Software is not manufacturing, and the tools required are readily available for almost anyone to make their own ebay copy at very little cost (compared to manufacturing bearings), but is that enough to make it substantially different to where patent law would not apply?

To be clear, I like the freedom of Linux, PHP, MySQL, and Apache, and I shudder to think I could come up with some neat idea for a client only to be sued because Amazon patented the "quadruple click" widget.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

That's the point: he doesn't want to see that happen.

Re:Similar to Donald Knuth's Logic

[geminidomino]

THERE was his mistake...

If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace

He told them if they did it, they'd be up to their asses in Americans! Hell, I wouldn't do it either, and I *AM* an American.

Re:Similar to Donald Knuth's Logic

[Hurricane78]

Well, it's that stuff without business logic. Basically a GUI interface to a database, that you could have generated out of the SQL with a script. (I have created something like this myself as it's really simple.)

Re:Similar to Donald Knuth's Logic

[russotto]

While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel.

Any combination of algorithms in software is itself an algorithm. Knuth isn't arguing obviousness or novelty; he's arguing that software isn't patentable subject matter at all, no matter how non-obvious or novel it may be.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

And he claims these statements do not invalidate his idea that non-mathematical software should be patentable! Knuth and probably 90% of software developers will argue that Quinn is either ignorant or insane.

Neither. Just another patent attorney trying hard to make a living out of other people's ignorance.

Re:Similar to Donald Knuth's Logic

[The_mad_linguist]

Here's where I disagree with Knuth - I believe all software should be patentable.

But not copyrightable.

Re:Similar to Donald Knuth's Logic

[ArhcAngel]

Microsoft BOB

Re:Similar to Donald Knuth's Logic

[schmidt349]

But isn't that exactly the kind of software that *doesn't* deserve patent protection because of how mundane and obvious it is?

Re:Similar to Donald Knuth's Logic

[Vahokif]

Hopefully, nothing.

Re:Similar to Donald Knuth's Logic

[morgan_greywolf]

What is "non-mathematical software"?

There is no such thing as non-mathematical software. Even printing "Hello, World!\n" requires math. Taking math out of software is sort of akin to taking carbon out of food.

Re:Similar to Donald Knuth's Logic

[tepples]

Would mathematics still be copyrightable?

Yes, a sufficiently large number can represent a copyrighted work. It can be represent a piece of music or a computer program. (A program is a list of instructions that describes a mathematical process in a way that a machine can carry out.) A program is copyrighted as a literary work, but the process that the program describes cannot itself be copyrighted in the United States per 17 USC 102(b). That's why some inventors have been trying to use patent law, which is designed to protect processes, to secure exclusive rights in algorithms.

Because any piece of music can be written down as a series of bytes

While we're still on the subject of musical copyright for a moment: Define the "hook" of a musical work as the first few notes of the memorable part. Then the Kolmogorov complexity of a hook can be estimated as having 40 bits or fewer, based on encoding each of the first eight notes in five bits: four bits for the pitch (0 to 15 relative to a standard scale), and one bit for whether the note is short or long. So there are only about a trillion musical hooks, and the birthday problem suggests that collisions start to become likely around the square root of that (a million). The music-theoretic rules of which pitches fit well together reduce the space even further. For comparison, the repertories of the major U.S. performance rights organizations, which have already surpassed 15 million (8.5 million for ASCAP and 6.5 million for BMI). So collisions such as "He's So Fine" vs. "My Sweet Lord" (Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976)) quickly become inevitable.

Re:Similar to Donald Knuth's Logic

[Sinning]

Why?

Re:Similar to Donald Knuth's Logic

[Attila Dimedici]

IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

.

My understanding is, quite likely, but the patent holder would have lost, unless they held a patent on ball bearings.
Let's take what I think is a better analogy to the current state (or maybe the just overturned state) of patent law (as interpreted by the courts). If the current interpretation had been in existence in the 1800's, the guy who developed the steam engine for trains could have written a patent for a device that moves under the power of combustion. This would have forced the developers of automobiles to pay him licensing fees. Under the patent law of 50 years ago, the fact that an automobile uses an internal combustion engine and is not limited to tracks would have invalidated the application of the railroad patents to the automobile.

Re:Similar to Donald Knuth's Logic

[thePowerOfGrayskull]

Are you going to clarify that, or just make a sweeping troll of a statement and wander off?

Re:Similar to Donald Knuth's Logic

[danaris]

If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?

Only if your method was identical (or very similar) to his method.

Despite modern corruptions, particularly in software patents, most patents are not, and should not be, of the form "A patent on making type of object X". They are and should be "A patent on a method for making type of object X."

In the patent, the entire method is clearly spelled out—it is made "patent," or obvious—and from the patent, anyone in the field and with the requisite equipment/money could produce the same object X by the same method. This, too, is missing from software patents, because to truly match a regular patent in this, the software patent would need to include the source code.

Dan Aris

Re:Similar to Donald Knuth's Logic

[Hatta]

An algorithm may or may not be novel, it still may not be patented.

Re:Similar to Donald Knuth's Logic

[Skuld-Chan]

That is reductionism at its finest. I would agree software patents are generally bad - because they are overly broad (One Click [tm] for example), but not because they involve math. If you used this argument in the physical world it seems to fall apart however, and that's what has me question its validity. At a fundamental level the physical world can be described with chemistry (atoms, physics etc) - and since you can't patent atoms (as far as I know) anything made from them can't be patented - which is everything patented including software because its just bits of atoms recorded in magnetic medium which can be described using chemistry.

Take the most recent NCSoft Vs. Worlds.com - in which they are claiming (from what I understand) to have patented a system for displaying and updating avatar positions in a 3d world and scaling this based on view. Its not a trivial concept at all.

But if you were an engineer at NCSoft working on an MMO and you were trying to crack this problem (of displaying avatars in a 3D world) - how else could you go about it?

Or One Click from Amazon - basically click on a purchase and use stored information about the buyer to complete the transaction - something most ANY point of sale system made in the last 20 years can do. My local pizza place has been doing this since they opened for business.

Re:Similar to Donald Knuth's Logic

[betterunixthanunix]

A mathematical theorem that combines several lemmas in a non-obvious and novel way is still not patentable. Combinations of abstract mathematical concepts leave you with another abstract mathematical concept -- a combination of algorithms is no less abstract or mathematical than a single algorithm.

Re:Similar to Donald Knuth's Logic

[PoderOmega]

I believe this should be a look and feel issue, which is usually related to copyright. http://en.wikipedia.org/wiki/Look_and_feel If you built a new fakeBay site using all new code, but the same functionality, I do not think it should be a patent issue.

Re:Similar to Donald Knuth's Logic

[CastrTroy]

Great point. I may write a book, and it may have some very non obvious and novel story lines, but the book isn't patentable. Books have copyright protection. The way patent law was written it specifically says you can't patent an algorithm, no matter now original it may be.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

A lot of proofs are non-obvious and novel combinations of other proofs, but we still don't allow them to be patented.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

I didn't realize you could patent oxymorons... Business and logic in the same sentence or phrase? how dare you!!!

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Why?

I'm not the OP, but I suspect it has something to do with the fact that a patent lasts for 13 years, and copyright is forever minus a day. (in the US, it's "life of creator plus 25, oops, make that 50, no, now 75 years, and the underlying law is changed every 20-25 years so that it adds another 25 years every time Disney's Steamboat Willie (and Mickey Mouse) might enter the public domain.)

Spend ten billion dollars to invent the cure for cancer? You get a patent. In return for a monopoly on manufacturing the drug until 2022, you tell the world how you did it, but in 2023, you'd better have made your $10B in R&D back, because in 2023, anyone with a sufficiently large chemistry set is allowed to start cranking out a generic version of your miracle drug at $1.00/pill.

Draw a cartoon mouse? You get a copyright. You can sell comic books, but anyone who puts one of them in a photocopier at any time in the next century gets charged $80,000 per page, or whatever the print version of RIAA's $80K-per-song verdict is.

Fuck copyrights. Scrap the entire copyright system and go with patents. Software's not art, it's invention. Just like a cure for cancer, if you haven't made your money back on a piece of software in 13 or 17 years, it's time to let someone else use the code.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

There is a distinct difference between Knuth's logical progression and yours. It's a matter of a few words, which may seem nit-picky, but what manner of logic doesn't boil down to pure semantics?

Knuth's "software cannot be patented" argument:
* Math cannot be patented.
* Algorithms ARE math.
* Software IS a series of algorithms strung together (as an aside, a series of algorithms interacting is itself an algorithm)
* Ergo, software cannot be patented

Your counter-argument via analogy:
* Atoms cannot be patented
* Machines ARE MADE OF one or more atoms strung together
* Ergo, machines cannot be patented

Note the emphasized words: ARE versus ARE MADE OF. Math is not a tangible object, so there is no concept of "is made of" in that context. Atoms are tangible, albeit on a microscopic scale. Still, that's enough to say that a machine IS MADE OF specific atoms. However, you cannot say that a machine IS an atom. You can say that a machine IS a group of atoms, but that's not enough to warrant a patent; a machine is more than that. The group of atoms is crafted into unique and complex shapes, and those shapes are put together and mechanical force is applied to make it accomplish a task. That is what warrants a patent.

I know exactly what you are about to think: aren't you doing the same thing to the series of algorithms? The answer is no. Math cannot be "crafted" into a "shape". It can describe a shape, but it is intangible. No mechanical force can act on math, and a solid object cannot be "made of math". An algorithm, quite simply, IS math; no more, no less. You can string together as many algorithms as you like, but all that does is create one larger algorithm. The same cannot be said about a physical object consisting of multiple atoms strung together.

The end result of a software may fall under another system, like copyright or trademark. But the underlying logic is all math, and that cannot and should not fall under patent.

Re:Similar to Donald Knuth's Logic

[schon]

Any combination of algorithms in software is itself an algorithm. Knuth isn't arguing obviousness or novelty; he's arguing that software isn't patentable subject matter at all, no matter how non-obvious or novel it may be.

<tounge-in-cheek>
But that's absurd! How will mathematicians have motivation to pursue their business if they can't patent the results!?!?!?!
</tounge-in-cheek>

Re:Similar to Donald Knuth's Logic

[aynoknman]

Would mathematics still be copyrightable?

Yes, a sufficiently large number can represent a copyrighted work. It can be represent a piece of music or a computer program. ...

And with a tinyurl.com transformation, it "sufficiently large" << large.

Re:Similar to Donald Knuth's Logic

[gnupun]

His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

Knuth is super intelligent, but his logic is flawed. Not all algorithms are math; most algorithms use some math. Algorithms are not a fact or discoverable, like mathematics. Instead, most algorithms are man-made, artificial software machines created by combining other smaller machine parts (more algorithms). In general, an invention, in all fields, whether it's computers, engineering, or carpentry, involves combining existing pieces to create a new, nonobvious piece.

If an electronics engineer can invent something by combining logic gates, flip flops and transistors, a mechanical engineer can invent a machine by combining gears, nuts, bolts, plastic and metal, then why can't a programmer invent a software machine by combining existing software machines? The concept is exactly the same, only the pieces (algorithms vs gears vs flip flops) are different.

Re:Similar to Donald Knuth's Logic

[Kashgarinn]

Well, it's a lawyer fighting for a new way to make money.

Have you seen the gross amounts of cash the sofware industry is generating? You don't think lawyers would like to get a patent system going on software so that they can get a piece of the action?

Stop looking at it as "oh no someone is trying to use a patent system on something non-patentable", rather look at it as "the profession which upholds paper as more important than people, innovation, or actual production of goods is trying to branch out into another field to benefit from it"

They won't stop because patenting software will become profitable for software-patent lawyers.

They can't see anything wrong with it, because they want to profit from it.

Re:Similar to Donald Knuth's Logic

[Perf]

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

One could argue that oil paintings are a collection of pigments that filter and reflect various wavelengths of light. The art is in the selection and arrangement of the pigments. Or that music is a sequence of tones. But some sequences sound better than others.

Programming is not pure science, it is a mix of science and art, like architecture.

(I also agree that something is terribly flawed with the software patent system.)

Re:Similar to Donald Knuth's Logic

[The_mad_linguist]

Duration. Software is rarely useful after 17 years.

Re:Similar to Donald Knuth's Logic

[tambo]

"The USPTO replied by defining non-mathematical software to be patentable while purely mathematical software is not."

Huh? This is completely wrong.

The USPTO has been arguing against the patentability of software since, well, software was first invented. And its main rationale is that the USPTO is ill-equipped to examine software patent applications. Of course, that argument is quite laughable these days, since it has been obligated to examine software patents since State Street Bank v. Signature Financial Group (1998)... it raises many more questions about the USPTO's recalcitrance to get with the times and meet its legal obligations... i.e., the sharp incompetence and chronic failure of the USPTO administration in managing the day-to-day operations of the organization.

The only "definitions" that have been applied to the field were created by the Court of Appeals for the Federal Circuit (CAFC), the appellate court that is solely empowered to hear appeals of district-level decisions in patent cases. That body (and its predecessor, the Court of Customs and Patent Appeals (CCPA)) have issued many different tests over the patentability of software. None have been satisfactory.

There is only one constant holding in the range of varying CAFC decisions over the years: software cannot be categorically rejected as a class of patentable subject matter. This would be a flat contradiction of 35 USC, the body of federal law that empowers the USPTO to issue patents.

But getting to the deeper problem: Software inventions cannot be categorically excluded from patentability because the technological spectrum of "method"-type inventions has a very smooth gradient. Consider:

• An abstract solution to an abstract problem;
• An applied solution to a specific problem;
• A particular algorithm;
• Specific code, runnable on a range of hardware;
• Code embedded in memory of various volatilities (volatile RAM, flashable memory, static ROMs);
• Configurable hardware (FPGAs) configured to implement a particular method; and
• Circuits designed by automated processes to implement a solution specified (as software) with a circuit design tool.

Everyone seems to agree that a particular circuit is, and should be, patentable. And everyone seems to agree that a completely abstract solution to a completely abstract problem is not, and should not be, patentable. Fair enough.

The logical problem arises when someone (particularly opponents of software patents - Knuth, Stallman, etc.) try to draw a bright line in this list and say, "Everything above this list should be categorically excluded." The problem is that all of these embodiments accomplish the exact same thing in essentially the same way. Sure, there may be various ancillary advantages: cost of implementation, reconfigurability, speed, etc. But technically, they are completely fungible - they are technically equivalent. It is nonsensical and against the logic of technology to try to draw lines in the sand.

Shame on anyone who attempts to invent arbitrary distinctions in this field. In attempting to warp the business of software to suit your ends, you ignore the conclusions of Turing that form the basis of your area of technology.

- David Stein

Re:Similar to Donald Knuth's Logic

[Chris Burke]

Algorithms are not a fact or discoverable, like mathematics. Instead, most algorithms are man-made, artificial software machines created by combining other smaller machine parts (more algorithms).

What makes you think mathematics is a "fact" or "discoverable"? That is not in any way the definition of math. The most basic rules of a mathematical system are called "axioms" or "postulates", as in things assumed to be true, not "facts". Who "discovered" addition? "Discovered" Boolean logic? All mathematical systems are man-made symbolic constructs. That some math is useful for describing reality, that they may in a very real way represent and spring from reality, doesn't change this. Many mathematical systems do not include axioms that represent what we know of reality. Many algorithms are useful for describing reality, they are man-made, but they are still math.

Hell, this is just a categorical failure here. Algorithms are math.

Re:Similar to Donald Knuth's Logic

[digitig]

Taking math out of software is sort of akin to taking carbon out of food.

Mmm, taste that salty goodness!

Re:Similar to Donald Knuth's Logic

[Runaway1956]

You are comparing lemons to peppers. In the first instance, you are exploring valid patent questions. Software, however, comes under copyright law. We can equate algorithms to an artist's paint. Paint is widely available to almost anyone living in any civilized country. Anyone is free to use paint in almost any combination and pattern they wish to use paint. Some people actually come up with "masterpieces" using that paint. Algorithms, or methods of doing math, are widely available to to anyone with a reasonable education. Anyone is free to use them, in any combination and patter in which they wish to use them. If an individual creates a "masterpiece" with algorithms, then that masterpiece should be protected by similar laws as any great painting.

Copyright law != patent law, and the two shouldn't overlap, despite the fact that they have similar goals.

Re:Similar to Donald Knuth's Logic

[Schadrach]

Effectively, the argument amounts to "Math is a descriptive language. Software is a way of stating mathematical concepts. Software should accordingly be not patentable for precisely the same reason literature is."

Re:Similar to Donald Knuth's Logic

[techhead79]

Because in a non software patent a specific state of that machine is patented. A specific order or collection in how those nuts, bolts, plastic and metal are working together. You could design a system around the patent depending on how far you're willing to go and how basic the patent is. The more complicated the device and the more defined the patent is, the easier it is to design a machine around it.

In the software side of things though they do not patent how the systems work together. They patent all forms of how the systems could work together, making it impossible to design around it. A copyright on software is more comparible to a patent on a machine. A patent on software though is more like having a monopoly on an entire field of business. Like the Hybrid patents we were just talking about here, it was shown that GM worked around the patents...that isn't possible in a lot of cases in software patents. It's just like if they patented all different combinations you could make this sentence. There is a reason why math isn't patented and this reason can be seen in software and some day DNA when our laws catch up.

Re:Similar to Donald Knuth's Logic

[The_mad_linguist]

And patents require that you show how you did it. Essentially, that setup would force all software source code into the public domain after seventeen years. Software is also much more similar to machinery than, say, artwork, as well.

Re:Similar to Donald Knuth's Logic

[Schadrach]

or if not the source code, some manner of pseudo code or other explicit, mathematical description of the precise algorithm used -- which only makes the "software = math = not patentable" argument more obvious.

Re:Similar to Donald Knuth's Logic

[tepples]

And with a tinyurl.com transformation, it "sufficiently large" << large.

For one thing, the TinyURL transformation is not onto; there exist valid strings that have no TinyURL representation. For another, TinyURL transformations can be eaten by a grue. From TinyURL's terms:

Using it for spamming or illegal purposes is forbidden and any such use will result in the TinyURL being disabled

This means TinyURL redirects are not a function only of the URL but of the URL and time. For example, a takedown notice from a copyright owner might cause the value of TinyURL(url, now) to be undefined for values of now greater than the date when TinyURL received the notice.

Re:Similar to Donald Knuth's Logic

[blahplusplus]

One could argue that nothing should be patentable on the same basis, since all information is just re-arranged in the universe, it is not actually "novel", when we make a "discovery" we're discovering things that are already there inherent in the universe. We have these false ideas that we are "Creating" things rather then merely *re-arranging pre existing stuff*.

Math are just representations of combinatorial elements, that's all particles are in our universe, every invention we "Create" was already inherent in the universe itself, since all things ultimately derive from nature and her processes, we merely re-arrange nature.

Re:Similar to Donald Knuth's Logic

[gnupun]

What makes you think mathematics is a "fact" or "discoverable"?

2 + 2 is always 4 regardless of culture, era, language, or whether you use sticks or stones to count. That's a fact. Now I'm not a judge or a lawyer, but according to legal doctrine, Math is not patentable because it is discovered, not invented, and I don't fully understand the nuances involved. Algorithms, on the other hand are artificial, man-made, and vary tremendously depending on its creator. For example, there are at least a dozen sort algorithms. Another real world example is if you were to describe a non-trivial problem to 10 different teams of programmers, you would get 10 very different programs. Because software is as much art as it is math and science. On the other hand, if 10 mathematicians in 10 different countries independently came up with Boolean logic, they would all "create" or "discover" the same laws.

... "Discovered" Boolean logic? All mathematical systems are man-made symbolic constructs.

So make math patentable. I don't see why those brilliant mathematicians who invent/discover new mathematical systems, or create useful, interesting proofs should be paid the same or less than some PHP/javascript/J2EE code monkey. The latter will be thrown away as technology progresses, while the work of the former will live forever. But if you allow this, physicists will probably start demanding the same.

Re:Similar to Donald Knuth's Logic

[Lord Bitman]

anything not written in LISP. And then some.

Yes, software can be modeled mathematically. You can write good software by using strict mathematical reasoning.
But not all software is mathematical. A lot of it is procedural. /most/ of it is procedural, really. You can re-write any computer program to fit an ideal mathematical model, but that doesn't make the method by which I chose to sort (that is, all the things that went into generating the number that eventually goes into sort()) returned prices this morning any more a derivable and beautiful fundamental truth of the universe than creating a mathematical model of an airplane wing makes that non-patentable. (And you'll be hard pressed to create a patent-worthy airplane wing design nowadays without doing so, for that matter).

Re:Similar to Donald Knuth's Logic

[bcrowell]

His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

While I agree with the sentiment, this isn't good logic. Since software is a combination of algorithms, the combination of those algorithms may be non-obvious and novel. I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

I regretfully agree with the parent post. One problem with Knuth's reasoning is that it's so broad that it would seem to say that algorithms and numbers shouldn't be copyrightable either. Here's an example that clearly should be copyrightable if it Shakespeare wrote it today:

printf("To be, or not to be: that is the question: Whether 'tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them?");

Knuth also says it would be terrible to allow a patent on a number like 1009, and that part of his argument is also so broad that it would apply to copyright as well. But if I take the "To be, or not to be..." string above and encode it into some big integer, it's clearly something that should be copyrightable.

Re:Similar to Donald Knuth's Logic

[thedonger]

You are comparing lemons to peppers.

I usually use lemon and pepper in combination as a nice flavor accent to chicken or fish.

I am aware of the difference between patent and copyright. What I was wondering about - and that a sibling post to yours addressed - is if the use of patents on the methods of creating via software a widget are patentable. Seems the argument is that a programmatic method for creating, say, a shopping cart is not patentable. The program utilizing the shopping cart, however, is copyrightable.

It seems clear that "quadruple click on the web" should not be patentable. A mouse with a "quadruple click" button would also not be patentable, but a method for producing mechanically a quadruple click could very well be patentable. So, how about electronically? And what if the extra button click is read by the mouse drivers (software) which then send 4 left-button clicks to the operating system?

I guess this is why such decisions are left to the experts. Now, someone explain why the experts apper to suck at their job?

The arguments about math are correct. Otherwise Texas Instruments wouldn't keep such a tight hold on their algorithms for integration, derivatives, etc.

Re:Similar to Donald Knuth's Logic

[Chris Burke]

This line you are trying to draw between addition and sorting algorithms, as if one is math and the other is not, is imaginary. It does not exist. Boolean Logic is not the only possible logic involving modulo 2 arithmetic, the dependence on its creator is in its name, and what you said is no different than saying if 10 mathematicians invented ten O(n*log n) sorting algorithms they'd all be the same. Yet if they *did* create the same algorithm, then those algorithms would have the same mathematical properties.

If you'll look up in this thread, you'll see where mathematicians have proven that software is math. But hey, what would they know about the definition of math? I'm sure your made-up definition is the right one.

So make math patentable. I don't see why those brilliant mathematicians who invent/discover new mathematical systems, or create useful, interesting proofs should be paid the same or less than some PHP/javascript/J2EE code monkey.

Because math is the fundamental language of scientific progress. It'd be like patenting language, the ability to talk about certain things. And in science, especially in electronics, 20 years is an eternity to lock up something so important as an algorithm. You know, if software patents had been around in the 60s when all those sorting algorithms and other basic components of modern computer science were being hammered out, we wouldn't be having this conversation today.

There's a reason mathematicians are not lobbying to change the Constitution to allow math to be patented, and in fact go to the effort to prove that all software is math. But hey, again, what would they know about their field? If it makes you feel better, pure mathematicians who hold positions at universities tend to do pretty decently. Webmonkeys don't command the salaries they used to. But brilliant scientists often are concerned with more important things than money. Their work living forever is a pretty damn good reward.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

That's probably the point of confusion. There's a category of "software patents" where the software (or algorithms) themselves aren't being patented. They function more as business model patents covering generalized interactions between devices to perform specific tasks.

Re:Similar to Donald Knuth's Logic

[plover]

Well, it's that stuff without business logic. Basically a GUI interface to a database, that you could have generated out of the SQL with a script. (I have created something like this myself as it's really simple.)

And all of that is rooted in math and Boolean logic. Representing the letter 'A' from the bits that make it up onto your screen is all math. SQL and UIs and everything else you see on your machine is built from thousands of those bits of math, each wrapped in semantically easier-to-understand layered abstractions. Just because some people don't remember that it takes math to decide to light up a pixel doesn't mean the math is gone, it's just very well abstracted so that people can understand it, reuse it, and build upon it.

Re:Similar to Donald Knuth's Logic

[CodeBuster]

Worse yet, Eugene teaches the most popular patent bar review course in the US. Ignorance begets ignorance.

So you might say that Mr.Quinn has a direct stake in the matter of software patents irrespective of the arguments themselves. If software cannot be patented then it harms the ongoing financial interest of Mr.Quinn, who earns his living teaching patent law and arguing patent cases, because there would be fewer patent cases to argue and fewer students interested in learning patent law.

Re:Similar to Donald Knuth's Logic

[gnupun]

If you'll look up in this thread, you'll see where mathematicians have proven that software is math. But hey, what would they know about the definition of math? I'm sure your made-up definition is the right one.

So, according to you and your esteemed mathematicians, word processors, operating systems, web browsers, are not technology using math, rather these applications are math themselves. Then why don't they teach the algorithms in these applications in math text books, or any text book for that matter?

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Algorithms have never been patentable in the US. Only their method of use. Find a new use for an algorithm, and you may be able to patent it even though someone else has previously obtained a patent which utilizes the same algorithm.

Re:Similar to Donald Knuth's Logic

[Darth]

a combination of algorithms is also an algorithm. if the algorithms that make it up are math, then the algorithm they are as subset of is also math. If math is not patentable, then that algorithm is not patentable.

I want SW-patents to go the way of the dodo as much as the next /.'er, but the above struck me as aking to A) atoms cannot be patented, B) all machines are made of one or more atoms, ergo machines cannot be patented.

this is not the same thing. Atoms would be analogous to numbers in this argument. They are both items. Math is what you do with numbers. Algorithms are sets of mathematical instructions to achieve a goal.

Since what you build with atoms is patentable, given constraints about novelty and obviousness, what you build with things made of atoms can be patentable.

In my opinion, it actually highlights the accuracy of his argument.

Re:Similar to Donald Knuth's Logic

[hackingbear]

His argument is simple: (1) math cannot be patented (2) all algorithms are math (3) all software is one or more algorithms and so follows that software cannot be patentable.

My argument is simple: (1) physics, biology, and chemistry cannot be patented (2) all mechanical operations, chemical/biological reactions are physical, chemical and/or biological (3) all machines, chemical/biological processes and compounds is one or more mechanical operations, chemical/biological reactions and so follows that machines, chemical/biological processes and compounds cannot be patentable.

While patent trolls in software are real, just like those for cars, machines, detergents, all claims that discriminated against software are in effect groundless. They should solve all patent troll problems, not just targeting software. Maybe the best solution is to kill all lawyers.

Re:Similar to Donald Knuth's Logic

[Actually, I do RTFA]

Permit me the reordering of your comments.

Even printing "Hello, World!\n" requires math.

At some level, in some sense, sure. Typing it into an IDE makes a machine do math. But so does typing a novel in Word. Yet few people would argue that writing a novel is a mathematical exercise, even if one uses a computer.

And yes, there is a compiler, but there are similar transformations to print the pages out. The end product in one case is binary code, interpertable by a machine to produce desired behavior (the machine will then use math). In the other case, the end product is text, interpertable by a human brain to produce the desired thoughts. This may use math as well.

There is no such thing as non-mathematical software.

Math is in everything at some level, the only interest is if the math is what is interesting.

Taking math out of software is sort of akin to taking carbon out of food.

Few people would contend that a chef's recipe is chemistry, despite the building blocks requiring some chemicals. (Okay, on slashdot, more people than normal may.)

Re:Similar to Donald Knuth's Logic

[Zerth]

Funny... I took a course entitled "Operating System Logic", where "logic" is shorthand for "math without numbers", and the book was pretty much all proofs(i.e. concepts said to be non-patentable).

Specific implementations(i.e. actual code, which is copyrightable(which is not the same as patentable)) were given in a separate text.

Re:Similar to Donald Knuth's Logic

[Firethorn]

Well, to be fair, if you were the FIRST to make a ball bearing or cotton gin, you could actually patent the device. But then, if somebody manages to make a substantially different device that does the same job(like seperating cotton from the seeds), your patent is invalid.

You also had process patents - a method of making a unpatentable object(like ball bearings, which have been around for ages), but the patent would actually cover a specific and innovative setup of machines that make the ball bearings, making them cheaper/faster/better if you want to make any money off the patent.

I detest today's 'method' patents which mostly seem to consist of 'Doing X on the internet/web', where X is an old, well known business practice and they simply slap 'on the internet' and patent it. Brainstorming is the least expensive part of coming out with a innovative new product.

Something like patenting electric shopping carts - which is simply a digital equivalent to the shopping carts/ordering lists people used BEFORE computers were invented.

Look at making steel - varying the carbon content by a percent wouldn't be a patentable change. Submitting a new process for producing vanadium steel that specifies mixture percentages, elements/chemicals used, temperatures and timing, mixing methods, etc... That's worth a patent. That took [i]effort[/i] and produced a useful(if not necessarily economical) product.

I very much agree with requiring including the source code.

Re:Similar to Donald Knuth's Logic

[shutdown -p now]

Only if your method was identical (or very similar) to his method.

What is a "method" if not a specific algorithm for doing something?

Re:Similar to Donald Knuth's Logic

[Theaetetus]

In the patent, the entire method is clearly spelled out—it is made "patent," or obvious—and from the patent, anyone in the field and with the requisite equipment/money could produce the same object X by the same method. This, too, is missing from software patents, because to truly match a regular patent in this, the software patent would need to include the source code.

No, it needs to be specified such that "one of ordinary skill in the art" could make or use the invention. Actual source code is unnecessary detail, and may be read by some people as limiting the invention to one particular programming language, so that if they just translate it from C to C#, for instance, they're no longer infringing.

Re:Similar to Donald Knuth's Logic

[morgan_greywolf]

At some level, in some sense, sure. Typing it into an IDE makes a machine do math. But so does typing a novel in Word. Yet few people would argue that writing a novel is a mathematical exercise, even if one uses a computer.

Yes, but I'm not arguing that point. The fact is, that no matter how you look at it, the very browser you are using right now to read this text used math to put this text on the screen. Software cannot do what it does without math.

Software is mathematical. They don't call them software 'algorithms' for nothing.

Re:Similar to Donald Knuth's Logic

[Androclese]

The part that is being left out of this discussion is the Copyright aspect of this. You should not be able to patent software, buy you should be able to copyright it. The algorithms you use might not be unique by themselves, but the way you combine them might be. THAT is the part that you should be able to protect for a period of time.

Re:Similar to Donald Knuth's Logic

[Actually, I do RTFA]

Software is mathematical

At the lowest level. Interesting things gloss over this... just like word processing glosses over the math. And the interesting things are what get patented.

Re:Similar to Donald Knuth's Logic

[ivan256]

Few people would contend that a chef's recipe is chemistry, despite the building blocks requiring some chemicals. (Okay, on slashdot, more people than normal may.)

A patent lawyer might. Though the point is moot, since the outcome of a recipe is what would be patented, and it is a physical object. Whereas programming produces a collection mathematical concepts.

But so does typing a novel in Word. Yet few people would argue that writing a novel is a mathematical exercise, even if one uses a computer.

Few people would argue that a novel is patentable. Anybody who did would be wrong.

Re:Similar to Donald Knuth's Logic

[pyrrhonist]

I may write a book, and it may have some very non obvious and novel story lines, but the book isn't patentable.

There might be a problem with that statement.

Re:Similar to Donald Knuth's Logic

[cyberfunkr]

That leads into the asahat theory that "I'm not patenting the code, because that's math and that's intangable. I'm patenting the unique formation of electronic bits that when read by a computer cause the computer to perform actions that would useful to the operator in need of a spreadsheet. Due to the random storage abilities of various media, this patent must include not just a single continuous string of these bits, but the string broken up into smaller discontinuous strings."

Or something like that...

 

Re:Similar to Donald Knuth's Logic

[danaris]

Only if your method was identical (or very similar) to his method.

What is a "method" if not a specific algorithm for doing something?

Apologies; I was less precise than I should have been.

It has to be a method using a physical apparatus, or the way of constructing said physical apparatus.

But, of course, I'm not a patent lawyer (or any other kind of lawyer). Season as desired.

Dan Aris

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Not all software are mathematical. Just because the OS or the CPU finally involves heavy mathematics still not all software can be termed as mathematical. Most web apps like facebook, yahoo messenger, word processing software etc are not mathematical software. Although there may be some algorithm based on math that can help searching, sorting etc, they are not essential to build the software.
If all software can be termed as mathematical, all biological developments can be termed as electronic. When you do stem cell research or culture test tube baby you do not have to count atoms or photons. So is the case with many software applications. You really do not have to worry about maths to build many of the software applications.

Re:Similar to Donald Knuth's Logic

[jefu]

At every level. See the Curry Howard Lambek Correspondence (mentioned also above). The math doesn't look like arithmetic, but then most math doesn't.

Re:Similar to Donald Knuth's Logic

[Actually, I do RTFA]

The math doesn't look like arithmetic, but then most math doesn't.

I was a math major, once upon a time. I know it is math. But it's not interesting because it's math.

If you want to talk about patentability, you have to choose the interesting aspect to be patented. Math shouldn't be patented, but at some level what you're patenting in CS is expressed in math, but the concept is not. "One-click shopping", believe it should be patented or not (and most say no), is not interesting because of the math.

Re:Similar to Donald Knuth's Logic

[__aayurq3262]

(1) math cannot be patented
(2) all algorithms are math
(3) all software is one or more algorithms and so follows that software cannot be patentable."

If I paraphrase this argument I get:
(1) a law of nature cannot be patented
(2) all physical principles are a law of nature
(3) all machines are constructed and operate according to one or more law of nature or physical principle and so follows that machines cannot be patentable.

Simple logic is too simple to rely on (unless you think that nothing should be patentable). I know I'm in the minority, but I don't see any fundamental difference between an electrical circuit, a mechanical machine and a computer program. At one level each can be abstracted into its fundamental physical and mathematical principles and at another level it takes a tangible thing - a machine, a computer or a circuit board - to use it for anything.

Re:Similar to Donald Knuth's Logic

[ArsonSmith]

Well then building a bridge is just math, baking a cake is just math, jerking it in the shower is just math, and nothing is patentable.

Re:Similar to Donald Knuth's Logic

[Alsee]

One could argue that nothing should be patentable on the same basis

No, the "argument" and "basis" there is that software is a form of math. There are some people with other arguments against patents in general, but that is a relatively insignificant position mostly held up as a straw man to slander the pro-patent position rejecting software as a non-invention.

Pardon the US-based discussion if you happen to be from elsewhere, but the US Constitution does permit the creation of patent laws as a potentially useful thing, and the US Supreme Court has ruled that physical objects are patentable inventions and that (physical/industrial) processes for transforming articles into a different state or thing are patentable process inventions, and has ruled that mathematics and algorithms and laws of nature are NOT patentable inventions.

You may write down a three hundred digit number, and that number may be "novel" and "non-obvious" in that one one has ever seen it before, and that number may be useful, but for patent purposes a number cannot qualify as novel or as non-obvious. Any number, any math, any algorithm, is and must be treated as a "familiar part of prior art".

The argument going on is that some people have the peculiar notion that software is somehow not a mathematical algorithm. They are trying to claim that the mathematical algorithmic calculations of software are a patentable "process".Most any mathematician dealing with the subject of software will tell you that all software is in fact nothing more than a mathematical algorithm. Most any programmer who has studied Computer Science or the relationship of math and programming will tell you that software is nothing more than a mathematical algorithm.

The Supreme Court has ruled (with good reason) that math and algorithms are not patentable inventions. Unfortunately the Supreme Court has not explicitly use the word "software" in there, and many people (and especially many patent lawyers) do not grasp that software is in fact nothing more than math. They see computers doing "novel" and "non-obvious" and "useful" things, and it seems to them that software fits in with "patentable inventions". But Calculus was once novel and non-obvious and extremely useful, but Calculus and software are nothing more than math, and with that understanding most people realize that Calculus and software are not - and should not be - patentable "inventions". Calculus may be called an "invention" in a figurative sense, but not in a patentable-invention sense.

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Re:Similar to Donald Knuth's Logic

[Alsee]

Well, it's a lawyer fighting for a new way to make money.

Most of them sincerely believe that software does validly fall within patentable inventions. A patent lawyer looks at software and they see stuff that is "novel" and "non-obvious" and "useful", and that pattern screams out to them "patentable invention!". They look at computers and see machines doing things, and there's this mysterious complex software-stuff doing new and amazing things.

Programmers, and mathematicians with any familiarity with software, have a pretty unique understanding of how it all works and what it all fundamentally *is*. We see that software is literally nothing more than a complex pure-math function taking numbers in, doing calculations, and outputting the math-result numbers. To most people math is passive - math doesn't "do" things. They look at computers and they don't see numbers, they don't see calculations, that see software "doing stuff", software doesn't look like math to them. They look at different computers and they see "different machines", or they look at the same computer running different software and it looks like a "different machine" doing something completely different. We look at a computer and see a "universal machine" capable of "universal calculation", the computer is a single machine capable of doing anything if you just feed the fight math equations into it, a computer is just a glorified calculator and software is nothing more than glorified math equations.

I'm sure virtually all pro-software-patent people would agree that a three hundred digit number was not an "invention" and not patentable even if the number was "novel" and "non-obvious" and no matter how useful that number may be, and I think most of them would agree software was not an "invention" and is not patentable if they had the same grasp on the basic nature of software that a typical programmer has.

They don't grasp the idea that software is actually nothing more than math. It doesn't look like math to them, it doesn't act like math to them. It's technological, it's made by creators, it's often novel, it's often non-obvious, and it's generally very useful and valuable, and as far as they can see it looks like a bunch of inventions.

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Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Having just finished a patenting course, I would agree, and I would go farther to state the statutes: 35 USC pp 103 (United States Code 35, paragraph 103) which deals with obviousness - ball bearing themselves are obvious (now) but processes to manufacture them might not be. And while a competitor may sue you (okay, will most likely sue you if you become competitive), they will probably not win if your process is sufficiently dissimilar (read: novel) than theirs and all others current publicly known or in use.

Re:Similar to Donald Knuth's Logic

[Alsee]

combination of those algorithms may be non-obvious and novel.

True, but irrelevant. The one algorithm in the first place could have have been non-obvious and novel. That does not make it patentable. Trying to combine two or more algorithms cannot produce anything other than just another algorithm.

You could be the first person to write down some non-obvious, novel, and extremely useful three hundred digit number. However a number is not an "invention" in any patentable sense, calculus was once novel and non-obvious and definitely useful, but calculus is not an "invention" in any patentable sense. No matter how novel or non-obvious or useful an algorithm may be, it cannot be an "invention" in the patentable sense. The US Supreme Court has explicitly ruled that algorithms must be treated as a "familiar part of prior art" for patent purposes. Software is nothing more than a form of math algorithm, and as such no possible software can ever qualify as novel or non-obvious as far as patentability is concerned.

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Re:Similar to Donald Knuth's Logic

[Chris Burke]

There is only one constant holding in the range of varying CAFC decisions over the years: software cannot be categorically rejected as a class of patentable subject matter.

Yes, and also that software by itself, as the pure mathematical abstraction that it is, is not patentable and has never been considered to be so. Software must be coupled with a physical device, and while the dodges around this were made wider for many years, they are now appropriately closing.

Shame on anyone who attempts to invent arbitrary distinctions in this field. In attempting to warp the business of software to suit your ends, you ignore the conclusions of Turing that form the basis of your area of technology.

The line between pure symbolic math, and a physical representation of that math, is anything but arbitrary. It's no more arbitrary than the difference between the words on your screen "Mt. St. Helens" and an actual volcano in Washington.

The Turing Machine was not and could never have been patentable, because it is nothing more than a mathematical abstraction. All your stated variations on the theme accomplish the same thing in essentially the same way only at the level of pure abstraction and logic. A physical circuit is only essentially the same as the computational model it embodies when you remove the physicality of the circuit and consider only the math itself. Then and only then does the math say that it and the Turing Machine it attempts to model are interchangable. But then that's because you're only doing mathematical equivalence.

Math is not patentable. Software is math. There is no debate, only those who know what math and software are and thus know that software is math, and those who don't and in their imagination feel they must be different.

Shame on those who would try to argue in favor of locking up mathematics, the most fundamental language of human progress, because they fail to see the difference between the abstract and the physical, between math and things that can be described by math.

Re:Similar to Donald Knuth's Logic

[hackingbear]

Nobody ever patent a machine. Rather people patent the design of a type of machines and such a design can be said of "IS MADE UP" of physical and/or chemical laws.

All discrimination against software invention is groundless and flaw. They should solve patent trolls for all types of inventions, which exists for cars (see the 2000 patents filed by Toyota for Prius.) Short of killing all patent lawyers, they could not get rid of trolls in general, and so they just take shortcut of eliminate a large category where there are more trolls; but there are more trolls in software, because it is relatively easy to develop software. Try develop a new compression or AI algorithms and see if all software inventions are trivial to develop.

Re:Similar to Donald Knuth's Logic

[hackingbear]

I should say: Nobody ever patent a machine. Rather people patent the design of a type of machines and such a design can be said of "IS" of physical and/or chemical laws.

Re:Similar to Donald Knuth's Logic

[blahplusplus]

You missed the point completely: We are an algorithm like being that re-arranges *pre existing elements in nature, just like mathematical equations re-arrange pre-existing information (i.e. numbers, symbols, etc, all in the *END* derive from nature itself).

Man did not invent particles or energy, he merely re-arranges it, even games are just re-arranged electrons which are then copied/transferred/stored between to other particles.

You're missing the link between bits of information and mathematics, which is fundamental.

Re:Similar to Donald Knuth's Logic

[tambo]

...also that software by itself, as the pure mathematical abstraction that it is, is not patentable and has never been considered to be so. Software must be coupled with a physical device...

Sorry, that's completely wrong.

You're reading the context, right? - i.e., "constant holdings in the range of varying CAFC decisions?" And not just your wished-for rule?

First, the CAFC has never held that "software by itself, as the pure mathematical algorithm that it is, is not patentable." Maybe Gottschalk v. Benson arguably involved this position (back in 1972!), but none of the decisions since then more recent decisions do.

Even under Bilski (prong #2), I can easily patent "software, as a pure mathematical abstraction"... as long as that software relates to the manipulation of data involving a real-world article. This is patentable even though the article isn't part of the patented invention.

What you're thinking of is the EPO's current rule - that "software as such" is not patentable, but that a solution to a problem is patentable, even if it is implementable as software. But no such principle has even been in force in the U.S.

===

Software must be coupled with a physical device...

No, it doesn't. Have you read In re Bilski? There's this whole second prong that has to do with patentable software - as a "mathematical abstraction," as you put it - that manipulates data related to specific, physical articles.

Next time, before you wade into a discussion of the legal history of patentable software (or any other topic), please consider reading the actual cases, and not just guessing or making stuff up to suit your position.

===

It's no more arbitrary than the difference between the words on your screen "Mt. St. Helens" and an actual volcano in Washington.

First - you do understand that patents cover concepts, right? And not specific, physical articles? A patent on a "machine" does not actually cover a unique machine, but rather an operative concept of a machine - e.g., a minimal set of parts that interoperate to achieve a desired result. So it's not the "actual volcano," as you put it, but an entire class of volcanoes that happens to have a particular feature. Not quite such a bright line, eh?

Second - and even worse for your position - "methods," as a class, are patentable. (This is in 35 USC section 101. You may want to read that now... I promise, it's short.) Yes, the "method" needs some grounding in pragmatism - and not just a mathematical formula or a scientific principle. But a "method" - a "process," as a set of actions - is a wholly non-physical concept, even if the consequences happen to be physical.

===

The Turing Machine was not and could never have been patentable...

Wow. Where to begin?

I might recommend that you Google "Turing machine" at this point. It is not an actual machine, you know. It is a concept - an argument about functional power, about the class of problems that may be solved by a theoretical machine having a minimal set of capabilities.

If you understand this, and re-read my post, you might discern that I was not suggesting patenting the "Turing machine," which is, uh, nonsensical.

I was, and am, arguing that if one devises a logical solution to a problem that can be performed by a device, there are very, very many ways of implementing that exact logical solution. There is actually no technical difference in these technical embodiments - they all perform the exact same method and solve the problem in exactly the same logical way. Thus, attempts to partition these embodiments into unpatentable "abstract" embodiments and patentable "non-abstract" embodiments are logically flawed and, frankly, a waste of time.

===

Math is not patentable. Software is math. There is no debate...

There most certainly is debate. Sorry you don'

Re:Similar to Donald Knuth's Logic

[plover]

You're right, except that baking a cake also passes the transformation test: an article is materially transformed from one state to another (eggs and flour are transformed into delicious cake.) It's not that math creates an exclusion to patentability, but math WITHOUT the transformation of a material article does. That was the point of Bilski, and that's the point of this patent invalidation. No material thing was changed in the execution of this program, apart from magnetic polarities on a hard disk and phosphor on a screen, and those machines are already patented.

In this case, only people changed behavior as a result of the math. That's not patentable. But if there was a machine changing behavior as a result of the math, (such as motors driving a carriage that carves a sculpture out of wood with a neon backlit spoon,) that whole machine could be patented.

The patent lawyers I've recently seen working insisted on adding ridiculous claims to software patents, "claiming a system with a CPU and memory" hoping to defend against Bilski. It's almost laughable, because the lawyers are essentially copy/pasting definitions from their CSci 101 textbooks without understanding a word of what they're really claiming. Ultimately, though, this case looks like it's the first in a long line of bad patents to be mowed down. I am not crying.

Re:Similar to Donald Knuth's Logic

[agrif]

One important thing to note is that actual, human brains are more than likely also just algorithms (or software, whichever strikes your fancy). If software is patentable, then so are simulated brains. Imagine a future in which people are patented.

Re:Similar to Donald Knuth's Logic

[calmofthestorm]

You're technically wrong, but I'm not sure that invalidates your point: http://en.wikipedia.org/wiki/Curry%E2%80%93Howard_correspondence

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Everyone seems to agree that a particular circuit is, and should be, patentable. And everyone seems to agree that a completely abstract solution to a completely abstract problem is not, and should not be, patentable. Fair enough.

No: existence or not existence of pure good or pure evil are abstract questions, but they are not related to software.
        Software is about what can be computed what cannot be, and it is related to logical and formal expressions.
        Logical and formal expressions are abstract things, but not all abstract things are logical nor formal expressions.
        That is where pro software patents lure their audience: they speak about "abstractions" to introduce the notion of "non mathematical software", but there is no such thing as "non mathematical software".
        Algorithms are math, software are expressions of algorithms by the use of logic and formal languages under the form of a program text.
        If the algorithm part of a software cannot be patented, the textual part of the corresponding program is protected under copyright only, as are every texts in the world which are not in the public domain.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

No, no. He's telling them Europe would be flooded with an influx of American software-writing geeks. That's a lot worse.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

I expect many Americans would want to emigrate so that they could continue to innovate in peace.'

Well that says it all. Why do I have to worry about being thought of as a criminal for every kine of code I write. I know that developers don't usually think of themselves that way, that's only owing to imperfect enforcement . Trust me, you're a criminal; the code you wrote today, whether you transmitted XML and interpreted it, serialized an object, used OR mapping or anything else, you're a criminal. Full stop.

I know if I write anything that makes any money, I'll stand a good chance of having someone somewhere file a lawsuit against me over software patents. At that point, I'll have to quit and give them whatever money I made since I still won't be able to afford the million dollar price tag to defend against a patent that never should have been issued in the first place.

Believe me, I know lots of developers who are scheming to get out of America and also to prevent their software from legally being made available for sale in the US, AU, NZ JP and other "patent friendly" countries. You work for 5 or 10 years for a chance to roll the dice in the marketplace- are you really willing to expose your One Big Chance to an IP system that is designed by large corporations - who are the only ones that can afford patent litigation- specifically to make it impossible for upstarts to compete with them?

I'm sure as hell not.

Re:Similar to Donald Knuth's Logic

[bill_mcgonigle]

Software is mathematical. They don't call them software 'algorithms' for nothing.

Is not a complex machine designed by engineers an embodiment of the mathematical formulas used to design it, applied in an algorithmic fashion? Something like the LHC looks to me like a mathematical sculpture, as every bit of its form is dictated by the math that describes the laws of physics.

Re:Similar to Donald Knuth's Logic

[bill_mcgonigle]

If you'll look up in this thread, you'll see where mathematicians have proven that software is math. But hey, what would they know about the definition of math?

Sorry, I didn't see the relevant comment ('up in this thread' is a function of settings and scoring) but I do know that most software is too complex to be able to prove correct. Only the simplest of software applications can be hoped to be proven mathematically.

In a world where a 300-page proof of Fermat's Last Theorem using esoteric topologies can be had, that relatively insignificant software cannot be mathematically proven to be correct - that must have some bearing on its relative place among mathematical constructs.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

Perhaps a better argument from him would have been something like:

X=1009

In a computer language that algorithm equates to setting a memory location - here represented by the variable 'X' - to 1009.

From Wikipedia, "In mathematics, computing, linguistics, and related subjects, an algorithm is a finite sequence of instructions, an explicit, step-by-step procedure for solving a problem"...

According to patent attorneys, "X=1009" could be patented under the right conditions (perhaps explaining that the number 1009 has some special mathematical properties associated with a given problem - and by setting a variable to the value, you can utilize that number to solve the unique problem).

The key point here is where is the line drawn between what is a mathematical algorithm, and what is instead, patentable intellectual property? Since all software, by definition is a mathematical algorithm, then it makes perfect sense that it is not patentable - regardless of the complexity or lack thereof.

Re:Similar to Donald Knuth's Logic

[Anonymous Coward]

"IANAPT (I am not a patent-troll), but I am interested in your take on this: If fifty years ago I came up with a way to manufacture ball bearings - independently of an existing, patented method - would I not be sued by the patent holder of the bearing production process if I brought a product to market using my bearings?"

Software patents allow people to patent mathematics. If you patent a polynomial, you can sue just about any type of program that uses a polynomial. It's very broad and abstract.

Re:Similar to Donald Knuth's Logic

[Alsee]

More agreement than quibble, but generic meat-brains or other custom hardware would be a patentable-object invention, while particular people would be software process patents and running the process of "thinking" to activate a generic mind to "run" a general minds would be a software process patent.

I think :)

P.S.
Therefore I am? :)

-

And so, it begins.

[danaris]

Let's hope this is a sign of things to come. With some luck, we might even see various patents on codecs invalidated, thus allowing much more freedom for which formats to use with the HTML5 <video> element...

Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

Dan Aris

Re:And so, it begins.

[Anonymous Coward]

In any case, patent law could use a rule like: if the merits of the patent do not substantially improve other (non-patented) methods, then the patent is invalid (i.e., the technology would be free to use by anyone else). This would rule out all the compatibility problems, with codecs, but also with file systems (FAT, anyone?) In my opinion, such a rule would be very fair, and useful as well.

Re:And so, it begins.

[jez9999]

Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

That would indeed be one cunning stunt of a swell foop.

Re:And so, it begins.

[jank1887]

Done. From Bitlaw (emphasis mine):

Section 101 of the U.S. Patent Act sets forth the general requirements for a utility patent:

        Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent, subject to the conditions and requirements of this title.

In other words, for an invention to be patentable it must:

      1. be statutory,
      2. be new,
      3. be useful, and
      4. be nonobvious.

Re:And so, it begins.

[tepples]

Too bad we probably have to see the patents invalidated one by one, rather than getting the entire class thrown out in one swell foop.

Would a lawsuit against all members of MPEG-LA, seeking an injunction against enforcing every patent in its portfolio, count as "one fell swoop" for H.264?

Re:And so, it begins.

[Svartalf]

Unfortunately, many of the filings should never have been granted on the basis that they fail on 2 and/or 4 in most cases with the software patents out. I've had the misfortune of having to read through some of the most atrocious things, including stuff referred to in initial refusals from patent examiners.

We're talking things like Amazon's One-Click patent atrocious here.

I'm hoping in re Bilski will withstand SCOTUS review or they deny cert on it for the appeal- and then we see a LOT more decisions like this one. It'd take the wind out of the sabre rattling over there in Redmond and then we can quit bickering about Mono (Even with their "new" MCP, it's not a good thing as it has entirely too many loopholes for words- give us a PATENT license guys!) and we can quit worrying about things like VFAT.

Re:And so, it begins.

[Svartalf]

Heh... You'd have to be well heeled to promulgate either a SJ procedure on the subject or the defense of an infringement case against you, violating their patents.

Keep in mind, though... The court system doesn't work the way you think it does and the MPEG-LA patents are conveniently for us something that can be implemented on a PC. They're really intended for dedicated hardware which passes the Bilski litmus test. It makes for a difficult call there and I wouldn't want to be the one to gamble on that decision. I'd go gunning for other stuff that's dead certain to cause woe, may have caused it in the recent past, is definitely something that would be invalidated by Bilski, and would delight many people to see that one get nuked so they can quit paying a certain corporation royalties on their nifty consumer electronics devices like GPS systems, cameras, etc.

Re:And so, it begins.

[Anonymous Coward]

IANAL, but this does not state exactly *when* the patent must have these qualities, which IMO is quite important.
must it be new when the patent is applied for? probably yes. must it remain new? probably no (since the mere existence of the patent renders it "not new")

therefore, the "useful" part is probably also to be taken as a quality that the patent has "at the time of application".

therefore, we need a new rule.

Re:And so, it begins.

[Anonymous Coward]

I suspect that if the patents on codecs are invalidated, the original authors will simply create a whole bunch of different implementations of the codec using different implementation techniques, then go after other implementations using copyright infringement.

Foiled again!

[Drakkenmensch]

Just when I was going to patent my "process for delivering an online response to a website article post", judges start remembering the Bilski Test!

Re:Foiled again!

[PMBjornerud]

Just when I was going to patent my "process for delivering an online response to a website article post", judges start remembering the Bilski Test!

You would never be able to implement that without paying royalties for the "process for transferring information between computers" patent, anyway.

Re:Foiled again!

[Anonymous Coward]

Hey, just build a "specific machine" for that purpose, and you will pass the test.

That would be nice ... a machine with the sole purpose of posting comments to slashdot.

Re:Foiled again!

[n30na]

Yeah, but they have to pay for the "process for encoding information as electrical impulses" patent anyway, so it's fair.

Re:Foiled again!

[Anonymous Coward]

Who implements this stuff? You just sit on your ass, wait for other people to make it, then demand money.

Re:Foiled again!

[MoriaOrc]

You mean the machine I'm using right now can do other things?

I guess technically it can also read comments posted to slashdot...

how long until the process becomes a "machine"

[fullmetal55]

unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client. IANAL nor do I play one on TV, but I work with enough of them to be able to spot a bad one. As soon as they mentioned specific machine, it seems their lawyer curled up and died, when he should have been arguing that the specific machine test does in fact pass as without the algorithms the process falls flat, and it is in fact the algorithms that constitute the specific machine in the patent. not the CPU or computer. If this does become a precident however, and this judgement does define a machine as "hardware" a LOT of patents are going to become invalid or challengable. and not just software patents. which means it's really just a matter of time before it's overturned.

Re:how long until the process becomes a "machine"

[Anonymous Coward]

exactly -abolish the USPTO!

Re:how long until the process becomes a "machine"

[Anonymous Coward]

So Turing machines count as specific now?

I think the Patent on those ran out in the sixties.

Re:how long until the process becomes a "machine"

[russotto]

An algorithm cannot be a "specific machine", as an algorithm isn't patentable subject matter in the first place. For years, software has been patented by using dodges like "A device consisting of CPU, storage, input device, output device executing algorithm X". Bilski makes that dodge invalid.

Some software patents are even sillier, in that they patent the _media_ containing the software. Some of Microsoft's FAT patents are that way, for instance. I don't know if that dodge has been tested in court since Bilski (or even before)

Re:how long until the process becomes a "machine"

[thePowerOfGrayskull]

the "specific machine" should have been the algorithms used in the code

What makes this a valid legal argument? Not challenging it, just would like more explanation.

Re:how long until the process becomes a "machine"

[Theaetetus]

unless the definition of "machine" specifically indicates Hardware, (which i'm sure it doesn't since processes can be patented) sounds to me like Dealerlink didn't have a lawyer who specialized in Patent law. rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code. This case doesn't stop anything. it's not precident setting, it's pretty much a bad lawyer losing a case for his client.

He didn't have many options, actually... I just read the patent involved. There are two independent method claims, reciting "a computer aided method". That's it. No support in the specification for hardware, specific CPUs, etc. So he really couldn't try to argue the specific machine route.

Re:how long until the process becomes a "machine"

[Abcd1234]

rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code.

Uhh... what? An algorithm is a process. A set of steps for performing some sort of operation. That is not a "specific machine", anymore than the design for a cotton gin, written down on paper, is a specific machine. The specific machine is that algorithm reduced to practice in some form. For a computer algorithm, that would mean a series of instructions running on a microprocessor.

Re:how long until the process becomes a "machine"

[Attila Dimedici]

The legal ruling saying that says that it must work with a "specific machine" is more recent than the ruling that says that processes can be patented. Said ruling appears to be intentionally limiting the ruling that allowed processes to be patented. Additionally, there is reason to believe that the judges in that case felt that the ruling allowing processes to be patented should be reversed, but made a more limited ruling partially because of the nature of the case before them and partially in order to allow for courts to gradually correct the abuses that resulted from the previous ruling. IANAL, but I play one in my head, so this is just my interpretation of the various writings I have seen on this subject.

Re:how long until the process becomes a "machine"

[SCHecklerX]

So you can patent a set of instructions for creating a set of instructions. Brilliant.

Re:how long until the process becomes a "machine"

[Abcd1234]

Hey, I never said it was smart, that's just the way it is. If you buy into the idea that software is patentable, it makes sense that it should be an implementation reduced to practice for a specific machine, thus at least resembling a real, physical invention. 'course, I happen to believe software shouldn't be patentable, but that's a separate issue.

Re:how long until the process becomes a "machine"

[Just Some Guy]

rather than allowing the argument to be lead in the direction of a processor being the "specific machine" the "specific machine" should have been the algorithms used in the code.

Arguments like that are what make people want to slap said lawyers silly. "Specific machine" is clear to the 99.9999% of the planet who aren't patent lawyers.

Three cheers for the judge with common sense

[xednieht]

Nice job US District Court Judge Andrew Gilford!!!

Software is equivalent to math.

[Anonymous Coward]

My degree is in mathematics. There's no such thing as non-mathematical software. There is mathematical proof of this. There's a nice equivalence theorem for the two, and the website linked shows the results of that equivalence.

I repeat: there's no such thing as "non-mathematical" software, because it is equivalent to math. The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1. And yes, people really do claim utter nonsense like that sometimes, especially those who don't understand the fact that infinite sequences like 0.99999[repeating] don't have a last digit by virtue of being infinitely long (if an infinite list had a last element, it would be a contradiction in terms, because part of the definition of infinite is that for every element x, there is a successor of x).

One might as well claim that pi is exactly 3.

Re:Software is equivalent to math.

[javaxjb]

0.99999[repeating] don't have a last digit by virtue of being infinitely long

It's last digit is 1 (as is it's first and only digit).

Re:Software is equivalent to math.

[Xenographic]

> It's last digit is 1 (as is it's first and only digit).

Very true, but only for the *other* way of writing the number. The whole point of that exercise is to illustrate that numbers can be represented in different ways, one of which does not and cannot have a "last" digit.

Re:Software is equivalent to math.

[windwalkr]

While you're technically correct, of course, I think that this attitude leads to some rather poor conclusions.

From the little I know of pure math (so correct me if I'm off-base here) I would suggest that 'proofs' are fundamental to the field. This is very definitely not the case in the majority of programming. If it was, we wouldn't need much testing, and there wouldn't really be bugs.

Your argument is that all programming is math when you get down to the single-instruction level, and that you can scale this up to cover the whole program. However once you reach the point where a program is complex to the point that it is impossible for our technology to prove, the result is certainly not what I'd consider math.

Your same logic could be applied to almost anything really. Break it down small enough, demonstrate it's math, therefore the whole must be math.

Re:Software is equivalent to math.

[Maury Markowitz]

> There's no such thing as non-mathematical software

Which is great and all, but has absolutely nothing to do with the patent process.

Patentability has nothing to do with the implementation, and everything to do with the intent. If the intent of the program is to control a loom in a new way, that's (theoretically) patentable because the purpose of the program is not to solve a mathematical problem, but a real-world one. If the intent of my program is to run Newton's Method, it's not patentable, because the intent of the program is to solve a mathematical algorithm. It is the _intent_that_is_encoded_, not the form of the encoding, that is the only concern in terms of _theoretical_ patentability - there's other rules that govern whether or not you'll actually GET a patent.

The basic issue that the new caselaw concerns is the concept of "transformation" in a patent. The original intent of the system was to grant protect to novel devices, either improvements on existing concepts (disk brakes vs. drum), or to totally new devices. But then what is a "device"? Is a deck of cards a device? A new book? The law defined it as something that tranforms something. A machine for freeze-drying coffee to produce Nescafe transforms hot coffee into a powder, which can be re-constituted into something similar to the original. Something is actually "being done", and it's THAT that the patent covers, not the machine itself. You can invent a better freeze drying machine, and get a patent on it, but you'll still have to license the actual concept of freeze-drying coffee.

This is good, and worked for a long time. Then the CS wags came along. In the 1970s there were a couple of cases where it was argued that a program is literally a collection of instructions that transform one number into another. Thus every program is transformative, and patentable. Once that got into caselaw, then someone pointed out that that _purpose_ of the program is to run an algorithm, so why does it have to be in a program? Why not any process that does any processing? And thus we got into the mess we have today.

The new caselaw basically noted that something got lost in the 1970s rulings - that the transformation has to _produce_something_patentable_. So consider these cases:

1) I make a machine called the wingnut that produces gazzezas
- patentable, gazzezas are a new product
2) I make a machine called the gizifa that produces gazzezas
- patentable, but I'll need to license gazzezas, or wait for it's patent to run out. Additionally, someone else is free to make a different machine that makes gazzezas.
3) I make a machine that runs Newton's Method
- treated like (2), because - critically - the product is not patentable

In essence, all patents had to flow from (1). Basically, there had to be a product somewhere. Prior to Bilski, caselaw stated that programs are transforming inputs into outputs, so there is a "product". Oddly, (2) didn't really exist, because they noted that a program can run across a wide variety of machines, so the idea of a "specific machine" (or implementation) was difficult because patents on (1) were automatically so broad.

The judge in the Bilski case noted that while it is true that all algorithms are transformative, the patent in question failed to actually make a "product" that was patentable, like case (3). Risk hedging is not a product you can patent, so then the only patent you might be able to get would be like (2). So this business practice moved from (1) to (3) - or similar to (2). He then noted that the patent application itself stated that it could be run using any number of different methods, it couldn't be a (2), by definition. So the patent was invalid.

Bilski was about a business practice, which generally don't produce anything. So now it appears some enormous subset of these are invalid. But what about software?

DealerTrack shows that the same principal applies. The patent in question did not produce a patentable

Re:Software is equivalent to math.

[Alsee]

I would suggest that 'proofs' are fundamental to the field. This is very definitely not the case in the majority of programming.

Just because programmers generally don't engage in 'proofs' does not alter the fact that software is a pure mathematical function, and that software is indeed subject to the mathematical proof process. For example during the DeCSS DRM brouhaha I recall someone too the software for DeCSS and ran it through a mathematical theorem prover. Some of the more advanced automated software bug detection methods essentially take the software as pure math and run it through various forms of theorem provers.

Every program is a math function and is subject to all forms of mathematical analysis including theorems, however programmers don't usually mess with the theorems angle for a variety of reasons. For one, manual theorem proving is generally equally difficult or more difficult than writing software in the first place, and automated (software) theorem provers are slow and generally choke on a problem of any significant size, and the nature and complexity of typical software is such that defining "what theorem you want/need to prove" for that software the becomes almost as messy a problem as defining the software itself. For example lets say the software receives the strange command to delete the same thing twice. The problem as a programmer is anticipating and properly handling that odd input. Now consider you want to do some sort of "theorem proof" for that software.... well that theorem you're trying to prove must itself explicitly or implicitly anticipate and handle the mathematical input equating to 'deleting the same thing twice'.

You can run software through something like a theorem prover for something like memory leaks... proving something like "for any possible data input and every possible execution sequence, this program will ALWAYS correctly follow up every memory allocation with a matching command to free that memory". So you can prove certain specific things like avoiding memory leaks, but proving general software as free of generic bugs is virtually impossible because a complete definition of "correct behavior" for generic software is largely equivalent to writing the software itself.

-

Re:Software is equivalent to math.

[Tired and Emotional]

pi may never be 3 but it can be 30!

The problem with this line of argument is that it takes a result as a premise. Why should not some mathematics be patentable? I don't really see much difference between inventing a working sewing machine and finding a way to factor large numbers in logarithmic time (say).

The answer of course is that publishing mathematics benefits the art more than patenting it would. So allowing it to be patented in the US would be unconstitutional.

On the other hand, software patents as currently being issued only require to disclose what is done, not the total details of how it is done. If to get a software patent you had to forgo copyright and disclose all your code, there might actually be a public good to awarding such patents. If I patent a sewing machine I am patenting the machine not sewing. The problem with software patents is they are patenting sewing not the machine.

Re:Software is equivalent to math.

[Alsee]

I was reading along and contemplating whether I wanted to make an appreciative/agreeing comment, until I ran into the part about MP3s.

I believe most readers would agree that MP3 "really is patentable"

Programmers overwhelmingly reject software patents, and I think they would generally cite the MP3 patents as a perfect example of such invalid patents.

The latest Supreme Court ruling touching on software patents was Diamond v Diehr. People on the pro-patent side often point to that case to affirm their position because in a binary yes/no way the ruling was in favor of the patent applicant, but in fact Diamond v Diehr was an extremely anti software-patent ruling.

You're right about "transformation" being a crucial issue, although you somewhat miss on the "product" angle. The Supreme Court stated that the clue to the patentability of a process patent was the transformation of an article to a different state or thing. The case was ruling upon an industrial rubber manufacturing process, and all of the language is clearly envisioning a physical-process physically-transforming a physical-article into a different state or thing. Note that the end product does not need to itself be patentable. A classic process patent would be such as the one for refining aluminum-ore into pure metallic aluminum. Aluminum metal is not a patentable invention, but transforming ore into refined metal is a patentable process.

They also explicitly ruled that an algorithm was not a patentable process, and explicitly warned that "insignificant postsolution [physical] activity" cannot be used to turn it into a patentable process. The MP3 patent is nothing more than a patent on the pure-math algorithm for mathematically transforming one sequence of numbers into a different (typically shorter) sequence of numbers. The act of sending that MP3'd sequence of numbers out to a speaker (typically sounding like music) would be an extremely insignificant postsolution (post software) physical activity, and that insignificant physical activity cannot be hijacked to transform non-patentable MP3 math into a patentable physical process claim.

What the Diamond v Diehr majority ruling actual stood for was the rather simple position that an otherwise valid patentable physical process was not magically REMOVED from being patentable subject matter simply because it added or included a math calculation somewhere along that physical process.

And earlier Supreme Court ruling (Benson) had already laid out the proper method for considering a process claim that included software. Any possible algorithm (any possible software) was to be treated as a familiar part of prior art, and the claim examined to see if it disclosed any OTHER inventive contribution. You can attach a computer to some physical devices preforming some physical transformation and obtain a patent if it discloses some novel non-obvious inventive contribution beyond the presumed-familiar-presumed-prior-art software.

-

Re:Software is equivalent to math.

[ppanon]

From the little I know of pure math (so correct me if I'm off-base here) I would suggest that 'proofs' are fundamental to the field. This is very definitely not the case in the majority of programming. If it was, we wouldn't need much testing, and there wouldn't really be bugs.

I'm afraid you are displaying ignorance of the subject. Every algorithm and piece of software can be proven, with the use of tools like formal methods. But as the article points out, doing so is expensive and that isn't always cost effective, and it isn't "foolproof". Remember Knuth's famous note in one of his books: "Beware of the above code. I have only proven it correct, not tested it.". In case you should think that the latter is making your point, you should be aware that many modern "proofs" of complex mathematical theorems go through an iterative development process (see Fermat's last theorem for example). Similarly, basic everyday "business" mathematics can be performed in ways that minimize the chances of error and facilitate "proof" of correctness. i.e. double entry bookkeeping. It's still math and yet it doesn't stop things like Enron and Ponzi schemes. Given the appropriate input data, you can devise an algorithm which detects those pathological cases, but GIGO.

There's nothing "non-mathematical" about software, even the buggy implementations which involve very bad or very fuzzy math. A bug is like saying 2+3=6. It is still math, it's just bad/wrong math.

Re:Software is equivalent to math.

[DJRumpy]

So which applies here. Is the MP3 format a patentable process, or a copyright-able process? I agree that patents are out of control in many cases, but if there is no monetary incentive for companies to produce things like the MP3 compression algorithm then we lose a lot of nifty new ideas. If patents don't apply to one, then what about a copyright for the process itself?

Re:Software is equivalent to math.

[TheTurtlesMoves]

Lower bandwidth on internet connections is a pretty big incentive regardless of patents or copyrights.

Sorry but the idea that if you can't get rich off it, no one will do it is totally disproven with the existence of OS software...

Re:Software is equivalent to math.

[DJRumpy]

Money makes the world go 'round.

Sure we have Linux, and Ogg, but their adoption is miniscule compared to the 'pay' versions. There is no money to be made from them. There are no App stores pushing their products for pay. These pay for play formats have whole infrastructures and industry's built around them alone. There is monetary incentive to contribute to their success.

How many music players support Ogg? There are some that support Ogg. You can find the 'list' if you look for it, although it's kind of scary read about discontinued products, e-bay purchases from Argentina, random iPod clones from Japan with 'undocumented' support, etc. Very word of mouth. You can bet that all of those support MP3 or MP4 however. Now how many music players support MP3? Pretty much every one on the market. Unfortunately, products like Linux and Ogg are all niche and will probably remain so simply because there isn't any money to be made from them and no incentive to push them other than to appeal to the /. crowd as an afterthought.

Re:Software is equivalent to math.

[DJRumpy]

One minor note in addition to the above. It could be said that these 'free' solutions followed on the heels of the pay solutions. The pay solutions paved the way and inspired people to create these free solutions. I don't know how often it has happened the other way around in recent times, but I would guess those situations would be more the exception than the rule.

Re:Software is equivalent to math.

[windwalkr]

Every algorithm and piece of software can be proven

Yes and no. That's my point. Theoretically speaking, yes. Practically speaking, no.

While each algorithm and piece and indeed the whole could theoretically be proven, it is not feasible to do so except in very trivial cases.

Once we reach the point where practice does not match theory, one questions the point of naming the practice after the theory. I'm not questioning the mathematical background or principles, but rather questioning the useful application of math to programming as a domain at the current time.

Re:Software is equivalent to math.

[windwalkr]

You can run software through something like a theorem prover for something like memory leaks... proving something like "for any possible data input and every possible execution sequence, this program will ALWAYS correctly follow up every memory allocation with a matching command to free that memory".

Except that you can't. You can do this for very specific types of program, built in very specific ways or very specific languages. There are a much greater number of programs and languages for which this is not possible.

Don't get me wrong - I realize that you can describe a theoretical algorithm to achieve this, and it would not even be difficult to write a program to do this in any arbitrary language. It's just that the program would require near-infinite storage and time to run.

So as per my post, while it may be technically correct that programming is applied math, in practice this is like saying that my heart beating is applied particle physics. The reality is too far from the theory to be of any use in the general case.

Re:Software is equivalent to math.

[xenocide2]

I'm afraid you are displaying ignorance of the subject. Every algorithm and piece of software can be proven

Who exactly is ignorant here? I vote for the person who ignores the incompleteness theorem. Of course, you didn't exactly define what it means for an algorithm to be proven, or the scope of "every."

Re:Software is equivalent to math.

[ppanon]

Well, if you're talking about the first incompleteness theorem, that's true. While Goedel's incompleteness theorem indicates that you can create an unprovable sentence in the same way that the Liar's paradox applies to truth, it's not clear to me that a G sentence would actually be an algorithm useful for anything other than messing up computer intelligences on SF shows. Yes, the "If I was an evil mastermind..." list should include "all my robots and computers will know to ignore G sentences", right after "all my plans will be reviewed for critical flaws by a panel of 5-year olds".

So yeah, you are theoretically correct. I haven't taken Comp.Sci. at a graduate level so it's possible there are other applications I'm not aware of. Let me know if you've run into a case in software engineering where you found an application (something other than complexity classifications that, while related, stand on their own).

I also find it somewhat ironic that, in a discussion where I'm arguing in favour of an equivalency between computer science and mathematics, you use a mathematical theorem to find fault with my argument.

Re:Software is equivalent to math.

[ppanon]

Sigh. I stated that badly so I'll try again. The GGP was indicating that lack of use of proofs in Computer Science sets that discipline aside from Mathematics. I argued that proofs, while not as common in software engineering as in mathematics, were quite possible, if not convenient. You pointed out that Goedel's incompleteness theorem indicated that not every algorithm in Computer Science could be proved and, while true, that theorem also applies to mathematics (where it originated). So while your statement is accurate, it does not serve as a distinction between Computer Science and Mathematics.

Re:Software is equivalent to math.

[xenocide2]

I also find it somewhat ironic that, in a discussion where I'm arguing in favour of an equivalency between computer science and mathematics, you use a mathematical theorem to find fault with my argument.

It's just that there are limits to what you can prove with formal logic techniques. For example, you can't prove that every computer routine terminates for every input. For example is newton's method is an algorithm that may or may not terminate depending on the inputs. If you want a contrived example, imagine using newton's method to calculate rocket trajectory and implement guidance routines. You might consider simulated annealing unprovable to terminate.

Finally, here's a concrete example of how software's relation to math confounds formal methods: Switch Stability is Undecidable.

Re:Software is equivalent to math.

[silentcoder]

That's odd... ogg vorbis is unpatented and by virtue of it's FOSS licensing effectively losing out on copyright monetization - and in fact came to exist because the mp3 patent so greatly reduced it's actual usefulness that the developers felt a genuine need to replace it.

You can't copyright a process - because that is not creative, the expression of that process is creative. If you make the "process" copyrightable - then you are allowing ideas to be copyrightable - or to put it another way "one artist paints a still life of an apple, now nobody else can ever paint an apple again because he owns the copyright on the idea of 'painting an apple'".

Yes it is that ludicrous and that's why not even US law is that stupid.

Software is unique in being the only thing in the entirety of law that can be both copyrighted (in implementation) and patented (at the algorythm/idea) level.

This is already a logical inconsistency. Quite frankly most software patents are about as logical to grant as a patent on "a story about two people falling in love" - and suddenly every romance writer owes you royalties ? Even if you come up with a truly new story idea (and that is very, very rare, stories by their very nature use the same basic structures over and over) should you be allowed to patent it so nobody else can write a story like that - even if it's a new and original one ?
Well.. there goes all Terry Pratchett's books - I mean, he satirizes other stories all the time ... in fact you just destroyed the entire field of satire so scrap mad magazine as well...

This is what is happening in software right now, because we've allowed them to not only copyright the implementation of ideas, but patent the ideas themselves. The very fact that software is deemed copyrightable should have automatically excluded algorithms from being patentable on the same grounds that we don't allow patenting ideas for any other creative process.

Re:Software is equivalent to math.

[silentcoder]

Well I think it's about fifty/fifty at this stage and the trend is moving more and more toward the pay-guys being behind.

Programming languages are a good example. Perl, Python, PHP, Ruby, Java - all highly innovative programming languages that appeared in the last 20 years, all free (I include Java because it was always free as in beer, I know it wasn't always free as in speech - but the argument here is about profit motivation so free as in beer counts to this particular argument).

Now what, in the same time has come out of the pay world that was truly innovative ? Delphi doesn't count - object pascal just added GUI libs to an existing language. Visual Basic perhaps you could count because it really isn't BASIC anymore... but then - it is hardly a great language, is single platform (all my examples were multiplatform) oh and it came way after Perl (to name just one). The only other one that's even remotely notable is C# - and hey wait, that bears about the same resemblance to Java as ogg does to mp3 now doesn't it ?

In short, what you point out as a "trend" is just not true, it looks like it because of selective reporting. With my selective reporting (another kind of software innovation) I have made it look like the proprietary software-for-money world basically never invents anything and all the innovation is done for free, mostly by academics but occasionally by corporations.

The reality is that in different sub-fields, different approaches have had the best results, I don't personally think that this is because either approach is better at anything - for initial-idea purposes, I think it shows that money plays no role whatsoever - dumb luck determines if it's a company or a FOSS developer that thinks of it first.
But here is the clincher, because the FOSS developers don't patent, and don't use restrictive copyright - our ideas are reused, built into new things and form building blocks for other ideas... to put it a different way - that secondary level of innovation, happens far faster and more efficiently in this reduced income (it's just not true to think FOSS is a zero-income economy but it is probably a lower-potential-income approach) system.

Re:Software is equivalent to math.

[silentcoder]

I agree with you - such a system would actually be beneficial - provided you meet one more criteria, software patents expire after 18 months.
There is no point to having uncopyrighted public code for an idea to call on when it's useful life is exceeded already and only a tiny minority of software algorithms outlast 5 years, the vast average is between 2 and 3. Even 18 months gives the majority of the average useful life of the invention to the inventor - and the remainder to others for building upon - before it's too late.

Re:Software is equivalent to math.

[Alsee]

I'm not sure whether or not there's anything to argue there.

The Supreme Court has ruled that algorithms cannot be patented, that any possible algorithm must be treated as familiar prior art for patent purposes. Some people argue that software is not algorithm, or not just algorithm, and is patentable.

If you agree that all software is nothing but algorithm, that software is merely a fancy way of writing a math calculation or math algorithm, that software is not a patentable invention and running software on a plain computer is not a patentable invention under that Supreme Court criteria, then I don't think there's really any quibble or significance in math-theory. Math does not cease to be math just because it's long or complex or difficult.

-

The *real* potential

[DoofusOfDeath]

Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.

As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

Re:The *real* potential

[Timothy Brownawell]

Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

Granted, this is risky for both sides. But perhaps if the SCOTUS gets enough appeal requests regarding software patents, it will finally address them.

I thought they already accepted an appeal of the Bilski case and were going to hear it next year?

As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

Patent threats are probably the greatest limitation we face on any kind of innovation. Historically they seem to either slow innovation (eg, sudden advancement of steam engines when the patents expired) or have no discernible effect.

Re:The *real* potential

[Neil]

Perhaps the greatest benefit of this ruling is that it could be appealed up to the SCOTUS.

But the Supreme Court has already said that it will hear the Bilski appeal:

http://arstechnica.com/tech-policy/news/2009/06/scotus-to-hear-bilski-may-be-huge-for-software-patents.ars

Surely that's when the precedents will be set?

Re:The *real* potential

[DoofusOfDeath]

p>I thought they already accepted an appeal of the Bilski case and were going to hear it next year?

Well, so much for that "+5 Insightful" I was going to give my wife for her birthday...

Re:The *real* potential

[Just Some Guy]

As a practicing CS researcher and as a programmer, I sincerely feel that patent threats are the greatest limitation we face on software innovation. I can't begin to imagine that the benefits to our society are outweighing the costs.

Especially since they only affect us. The other 95% of the world's population couldn't care less about our patents.

Surprising

[DustyShadow]

Kind of surprised the court didn't stay the decision considering that Bilski is scheduled to be heard by the Supreme Court.

Re:y0u phai1 i7, so go fuck yourself

[jank1887]

thanks for keeping the dream alive...

Backward patent logic

[MobyDisk]

I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

When Phil Katz invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.

Re:Backward patent logic

[Theaetetus]

I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

When Phil Katz invented a compression algorithm, he patented it. It seems to me, to be a fair thing to do. He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

The problematic software patents are not mathematical. They are things like one-click shopping and auctions done over the internet, or really all of the something done over the internet patents. These are lame and should be eliminated. But a new algorithm seems like truly inventive to me.

Yeah. Even more so, the policy decision behind excluding novel and nonobvious mathematical algorithms from patentable subject matter has to do with thoughtcrimes... Say I get a patent on 2+2=4. You read my patent specification where I describe in extensive detail how 2+2 comes to equal 4. You understand it and think, "gosh, now I know that 2+2=4". Did you just infringe my patent, merely by thinking it? We don't want that outcome.

Bilski had two routes for patentability in process claims: "transform" something and "tied to a specific machine". The former is because we don't want to invalidate "process" patents on tempering steel, for example. The latter is because, once tied to a specific machine, you're not infringing the patent by thinking. If my claim above was "A method of adding, wherein a memory register on a computing device containing data identified as the number 2 is added, by an addition engine configured on the computing device, etc.", then you could never infringe it with your brain, or even a pad of paper and a pencil.

In this patent, the claim was "a computer aided method", but that's it for specifics. That's not a meaningful limitation. For instance, if my claim was "a computer aided method of adding 2+2 to equal 4", and you use wordpad instead of a pad of paper and pencil, did you just infringe? Sure. That starts to go back towards the thoughtcrime end of things, though. So, for policy reasons, we want to limit patents on things like this in a meaningful way that requires a specific machine.

Re:Backward patent logic

[Anonymous Coward]

He invented the algorithm, he should deserve the credit and (if he chose to commercialize a product), the resulting profits. Same thing with encryption algorithms - if I created a new super-encryption algorithm, I should be able to commercialize it.

One of the things that really bothers me about software patents is that the patent holders are trying to have their cake and eat it, too.

The purpose of the public offering patent protection to individuals/companies is that the public reaps the benefits of having the details of the patented technology opened. In the case of software, for that to be realized, I would think that a software patent would need to be accompanied by the full source-code to a specific implementation of the patented algorithm.

The problem is that people who try to patent things like a new encryption algorithm are taking advantage of triple protection: the protection of the patent on the method, the protection of copyright law on the binary, and the protection of obfuscation since they don't even release the source-code.

If software patents are to be allowed, then a viable implementation needs to accompany the patent, and that code should be free-and-clear (including no copyright restriction) after the patent protection elapses. Of course that's only one argument against software patents. The other arguments (it's just math, high likelihood of independent discovery, etc.) also sink the whole notion...

Re:Backward patent logic

[starfishsystems]

Even supposing we had complete freedom to do so, it would be hard to formalize a clear division between patentable and non-patentable algorithms. I agree with you, and respectfully dispute with Knuth, that some algorithms qualify as inventions. On the other hand, some algorithms arise in such a direct consequence of fundamental mathematical properties that they qualify only as discoveries. And then there's the hazy middle ground.

It's true that, by construction, and given infinite time, it's possible to enumerate all possible algorithms. In that sense, all algorithms naturally exist and can only be discovered. But this sort of reduction makes itself absurd. It's sort of like how Maxwell's Daemon was resolved in thermodynamics: the act itself of selection might not require work, but figuring out which item to select most definitely does.

Only a tiny subset of algorithms are useful. Who would want a cryptographic algorithm that occasionally yields plaintext? So I'm afraid we have to fall back on the "obviousness" test.

Re:Backward patent logic

[es0vyr4fVY9LD8ub]

Aren't you confusing patents with licensing? GPL'ed code isn't patented but it is has a license.

Re:Backward patent logic

[rgarbacz]

Seems like you are not aware of the fact that the copyright law covers things as algorithms, books, music, etc. Simply the "patent law" is designed for different things.

Rewording a creator/inventor is one thing, and using the patent law to enforce it is another thing. In the case of algorithms it is simply not the right tool. People like it because is simpler to prove (when provable) in a court, but because is not adequate makes a lot of mess.

Re:Backward patent logic

[Wolfbone]

The "it's all maths / it's not all maths" arguments are indeed bogus - but so are the "it's truly inventive, it deserves a patent" arguments. Credit should be given and easily can be without also entailing powerful monopoly exclusion rights; your ability to commercialise some invention is not dependent on its being patentable and is not something which can be guaranteed by patents anyway; furthermore, third party patents can and often do work in exactly the opposite direction!; the patent offices never have attempted to distinguish at examination time between the truly inventive and the run-of-the-mill and for obvious reasons cannot be expected to ever be able to do so (at least not reliably, fairly and at reasonable cost); the moralistic "it deserves a patent" sort of argument falls apart when independent (re-)invention is taken into account;...

...To cut a long story short, the only arguments that really stand up in the end are the economic arguments. The fundamental economic question is this: Does granting patents in some field or industry significantly promote progress, innovation and overall economic and social welfare? If not, that field or industry certainly shouldn't be burdened with the considerable weight of negative effects that are an inevitable consequence of patent eligibility. As Fritz Machlup wrote in his 1958 Economic Review of the Patent System:

If one does not know whether a system "as a whole" (in contrast to certain features of it) is good or bad, the safest "policy conclusion" is to "muddle through - either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. This last statement refers to a country such as the United States of America-not to a small country and not a predominantly nonindustrial country, where a different weight of argument might well suggest another conclusion.
      While the student of the economics of the patent system must, provisionally, disqualify himself on the question of the effects of the system as a whole on a large industrial economy, he need not disqualify himself as a judge of proposed changes in the existing system. While economic analysis does not yet provide a basis for choosing between "all or nothing," it does provide a sufficiently firm basis for decisions about "a little more or a little less" of various ingredients of the patent system. Factual data of various kinds may be needed even before some of these decisions can be made with confidence. But a team of well-trained economic researchers and analysts should be able to obtain enough information to reach competent conclusions on questions of patent reform.

Here is some of that research and analysis: http://researchoninnovation.org/

Re:Backward patent logic

[SLi]

No, you are wrong. Copyright does not cover algorithms. Copyright covers only expression.

Copyright covers a specific program implementing an algorithm; however others are free to use the same algorithm.

Re:Backward patent logic

[eiderman]

In general, I agree with this sentiment: a clever, elegant, non-obvious way to transform data should have some protections. However, I imagine that copyright law would provide enough. A short amount of code only has so many unique representations (assuming we define the same logic in java and perl to be 1 representation). Since most of these will be effectively identical, the inventor ideally has some good protection right there. When someone creates a new and hopefully better way to perform the same task, then that code should be separate with its own protection. It ends up being a balanced way to protect things since it encourages algorithmic innovation and makes it really difficult to protect something that has a dozen different ways of being implemented (like a one-click patent). The downside is that it requires access to competitors source code in court and various methods for deconstructing any language to its logic for comparison purposes.

Re:Backward patent logic

[shutdown -p now]

In general, I agree with this sentiment: a clever, elegant, non-obvious way to transform data should have some protections. However, I imagine that copyright law would provide enough. A short amount of code only has so many unique representations (assuming we define the same logic in java and perl to be 1 representation).

That's not how copyright works. So long as I do not directly derive my source code from your source code, I'm in the clear. If I read your algorithm in Java, and write an equivalent implementation in Perl on my own (rather than translating statement-by-statement), the latter does not infringe on your copyright.

To be completely on the safe side, it can be done by two people. The first one reads the original code and documents the algorithm in plain English (and possibly flowcharts). The second one takes that specification, and implements it in Perl.

Re:Backward patent logic

[eiderman]

I just assumed that a translation of code into another language would constitute a derivative work. Much like translation of Harry Potter into German would be protected by the original copyright. On the other hand, my biggest problem with this kind of protection entering copyright is the absurd length of time that it lasts.

Re:Backward patent logic

[rgarbacz]

Well, regarding the post above: you are right.

Regarding the previous post, I misunderstood your point. Since patents are designed for implemented processes in a machine or an apparatus (e.g. a telephone). I assumed you are talking about an implemented mathematical algorithm, which is "software", which is covered by the copyright. But if you would like to have "pure" mathematical algorithms patentable, I can only say that in my opinion it is a sleepy slope.

Re:Backward patent logic

[Alsee]

Your reasoning seems to indicate that a novel non-obvious and useful three hundred digit number should also be a patentable invention.

In any case, the US Supreme Court has ruled that as math, all algorithms must be treated as "familiar prior art" as far as patent law is concerned. You can no more "invent" an algorithm than you can "invent" a number or a law of nature. Any possible number is inherently treated as familiar prior art. Unfortunately the Supreme Court phrased it as "algorithms" without explicitly filling in the word "software" as being non-patentable and inherently treated as familiar prior art.

The conflict is that many people do not understand that software is in fact nothing more than a particular form of mathematical algorithm (and believe software *is* legitimately patentable), and that some people who do understand the nature of software are nonetheless highly motivated to circumvent the rules and the law fighting for such patents anyway.

-

Re:Backward patent logic

[starfishsystems]

Thank you for restating one of my minor points and placing it in a particularly American context.

Re:Backward patent logic

[Alsee]

Copyright draws a distinction between the "ideas" in a work from the "expression" of those ideas. A direct translation of Harry Potter into German would be an infringement of copyright, however reading Harry Potter and extracting some of the ideas of how characters interact with each other, or the idea of the protagonist confronting his fears or being deceived and undermined by the villain, and writing a new story (in any language) based on those ideas would not be infringement. The idea vs expression concept is in particular used in software copyright. It is absolutely legal to examine or reverse engineer software to understand what it does and how it works. It is legal for you to then write your own software using those ideas, or even to write functionally identical software to fulfill the same role. When attempting to create "functionally identical" software you are very vulnerable to charges of deliberate or accidental copying of the particular code in the source, so sometimes an explicitly "clean room" implementation is done. One programmer (or set of programmers) examines the original program and then writes a specification of exactly what the software does... defines exactly what the inputs are and defines exactly what sorts of outputs must be generates and how the inputs and outputs must be structured and what kinds of processing need to be done... and then a second programmer (or group) writes their own code to carry out the task. This is a clean room implementation. A properly carried out and properly documented clean room implementation makes you immune to charges of copyright infringement, even if significant chunks of the final code are substantially identical to the original.

Another significant point is code that is "purely functional"... copyright only protects creativity and expression, not function. Your earlier post commented on "A short amount of code only has so many unique representations... Since most of these will be effectively identical, the inventor ideally has some good protection right there. In fact that would leave you with little to no copyright protection. Programmers are free to write their own programs, and if there is only one way or a small number of ways to do something then there there is no creativity in doing it that way. All programs in C need to contain "main(" - that is the one and only way to identify where execution should begin. Writing "main(" is purely functional, it has zero protectable creativity.

There are interesting stories behind the origins of court rulings like these. The entire PC revolution rests upon clean-room reimplementation. In the early computer days a variety of manufacturers began manufacturing IBM-compatible parts for personal computers. The most significant barrier to introducing a compatible "clone" computer was the BIOS making the whole computer work. I forget who, but some company did a clean-room project creating their own PC-compatible BIOS software replacement, and thus ushered in the era of low cost "PC-clones". Had IBM been able to maintain a monopoly on the PC-compatible market based on their BIOS copyright, PC prices would never have sharply fallen the way they did, and the "IBM-compatible" PCs would not have exploded the way they did directly into today's modern PCs. The world would be a very different place if not for the PC revolution, and it all rests upon the legal right of a company to program their own BIOS software to recreate the functionality of IBM's BIOS.

The other case involves a gaming console company's extremely primitive attempts at a form of DRM for their game cartridges. I forget what company it was, but what they did was take an arbitrary small copyrighted image (it was like a hundred bytes or so) and include it at the start of every game. The game console was designed to check for that exact image as part of the startup sequence before running any game cartridge. Another company started releasing independent games for that console, and in order to get the games to load and run they obviously had

Re:Backward patent logic

[silentcoder]

You got the facts right - but unfortunately - people will are greedy and will try to abuse the law. Take for example a whole bunch of recent copyright lawsuits launched by J.K. Rowling against a number of authors world-wide. None of these authors copied or translated her works, they wrote stories about their own characters which were heavily inspired by the kind of story in Harry Potter - and she sued them.
Now it's true that under most international copyright law systems - her suits were completely without merit, proving that however costs money - and most of these authors simply couldn't afford to defend - so they had to settle, usually with a no-further-publication clause.

Basically, the law handles this right, but the legal system is not always (and this is better or worse in various countries but never ideal) good at ensuring the law is only used the right way.

Define equal

[tepples]

The only people who think otherwise don't know what math is. It's like trying to claim that 1 != 1.

It depends on how you define !=. In Python, 1 == 1, and 1 == 1.0, but 1 != True, and 1 != "1". In PHP, however, 1 == 1, 1 == 1.0, 1 == True, and 1 == "1" (in fact, 0 == any string that can't be converted to an integer), but there is another pair of operators === and !== that strictly compare both value and type: 1 === 1, 1 !== True, and 1 !== "1" like in Python, but also 1 !== 1.0.

Re:Define equal

[Anonymous Coward]

Correction: in Python 1 == True. You can even do True+True, which is 2. Not that it matters if you write decent code.

Re:Define equal

[maxume]

Actually, 1 == True is True in Python (so 1 != True is False).

It is largely an artifact of the late addition of True and False to the language, prior to the introduction, comparisons returned 0 or 1. When they were added, it was decided that code depending on comparisons returning 0 or 1 didn't need to break.

Re:Define equal

[Anonymous Coward]

Just to hopefully prevent future confusion, the first bit about equality in Python isn't quite correct. Here's a quick example.

Python 2.5.2 (r252:60911, Feb 21 2008, 13:11:45) [MSC v.1310 32 bit (Intel)] on
win32
Type "help", "copyright", "credits" or "license" for more information.
>>> 1 == True
True
>>>
>>> 1 is True
False

In Python, 1 is "equal" to True, but not "identical".

(At least for recent versions -- I don't recall if this has been the case since True was introduced.

Re:Define equal

[Dan Ost]

Please post an example of code you've written in your language of choice.

If you're like 99% of the decent programmers out there, whitespace is already meaningful in your code. Python simply makes it explicit.

Re:Define equal

[Anonymous Coward]

Yes explicit, thus taking away my freedom to use whitespace as *I* see fit. Open source is about freedom... blah blah blah :)

Re:Define equal

[dirtyhippie]

FAIL for not using some variant of LISP to define the != symbol.

Re:Define equal

[Anonymous Coward]

It's simply untrue that in Python 1 != True:

alex@alex-laptop:~/projects/piano-man$ python2.6
Python 2.6.2 (release26-maint, Apr 19 2009, 01:56:41)
[GCC 4.3.3] on linux2
Type "help", "copyright", "credits" or "license" for more information.
>>> 1 == True
True
>>>
alex@alex-laptop:~/projects/piano-man$ python3.0
Python 3.0.1+ (r301:69556, Apr 15 2009, 15:59:22)
[GCC 4.3.3] on linux2
Type "help", "copyright", "credits" or "license" for more information.
>>> 1 == True
True
>>>

Re:Define equal

[OneSmartFellow]

"If you're like 99% of the decent programmers out there, whitespace is already meaningful in your code."

hmm...  Let's see, here's a (somewhat) random snippet of a library I'm working on now, see all the significant whitespace ?

unsigned int       exchange_id    = a_response.getUInt16( fid_exchange_id );
const char*        country        = a_response.getChar( fid_country );

const Exchange*    exchange       = resolveExchange( exchange_id, country );

prod = new Product(name,
                   currency,
                   exchange,
                   exchange_contract_id,
                   Product::MNEMONIC);

The only meaningful whitespace is one space character between each token, all the other whitespace is there to make it easier to read, and not in any way meaningful to the compiler. I could just as easily formatted it with a single space between each token, and not put the constructor arguments on separate lines, but then it would me more difficult to read.  The compiler would produce the exact same code, though.

Whitespace does indeed serve a purpose in my language, it separates tokens, nothing more.  The amount of whitespace I use to separate tokens is completely up to me, and that's sensible, and gives me plenty of flexibility.

Re:Define equal

[Dan Ost]

Have you ever tried using Python? What you've done above would be perfectly fine in Python.

Python only enforces consistent indenting at the beginning of the statement. All of your spread out lines are fine since the whitespace is within a statement. All your parameters to Product() are clearly not new statements since they're in parenthesis, so python wouldn't complain at all. If they weren't inside parenthesis (or brackets), then Python couldn't be sure that they weren't new statements unless you ended the previous line with a '\'.

Have you got an example of white-space formatting that would actually cause problems in Python?

Re:Define equal

[OneSmartFellow]

// iterate through y as long as y doesn't equal x, incrementing y with each iteration
// if y equals x, (as a result of the last increment), decrement y, otherwise, continue the loop.
// this is an infinite loop under c++ (I think, I might have had too much wine)
int x = 0; int y = -1; for( ; x != y;++y)
if( x == y )
y--;
continue;


Although I don't know Python well, I'm pretty sure this would not behave the way it would under c++.

Re:Define equal

[Dan Ost]

You're correct that the lack of whitespace in front of the loop body would cause problems in python since the loop body is longer than one line.

The question is, is this how you would want that code to look? No indentation at all? It's hideous!

Without braces and the missing "else" token, it would be very hard to know what this code was meant to do and fix it if it were broken (in the absence of the descriptive comment). Meaningful whitespace would make it easier to read.

Re:Define equal

[OneSmartFellow]

Meaningful whitespace would make it easier to read. My point about Python exactly.

I can add pleasant looking whitespace to this code, and change the way it behaves. If I choose to indent some parts, but not others, it doesn't do what I would expect. That's just dumb !

Babies and bathwater

[McGregorMortis]

I'm not entirely comfortable with Bilski. I think the Bilski test has thrown out the baby with the bathwater.

Not, in the case at hand... this patent sounds like 100% pure unadulterated bathwater. But nevertheless...

I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.

There are some really clever algorithms out there, though. Algorithms that are not at all obvious, and really advance the state of the art. If Quicksort was invented today, wouldn't it deserve a patent?

But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.

But can't we do better? Can't we find an "obviousness" test that works?

Re:Babies and bathwater

[Theaetetus]

But if the bath water is going to include such notorious crap patents as 1-Click, Desire2Learn, NTP, and many others, then I would have to say that the bathwater is so rank and disgusting that it's not too high a price to pay to lose a handful of babies, as Bilski does.

But can't we do better? Can't we find an "obviousness" test that works?

Bilski wasn't about obviousness - Bilski was about patentability of certain types of inventions. For obviousness, you want to look at KSR v. Teleflex, where the Supreme Court laid out 9 different ways to find something obvious.

Re:Babies and bathwater

[Svartalf]

The position is pretty explicit. The past law was such that if it were a business process or describing an algorithm in the traditional sense (the bulk of software patents do this...) then it wasn't patentable- same goes for that which resides in nature. Bilski puts it back to where it was prior to all the fun and games when it was thought that it was a "good idea" to allow patenting damned near anything. It's not throwing the baby out with the bath water- it's fixing part of what's been broken for a while now.

Re:Babies and bathwater

[Timothy Brownawell]

I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless.

Patents are based on the idea that you have a person who is an Inventor, and needs to have special privileges to be able to invent new things. Historically what seems to happen is that lots of people will be experimenting in the same area and possibly sharing notes, and will all converge on an invention.

Patents are fundamentally based on the assumption that Inventors are uniquely special, and a particular Invention is unique to a particular Inventor. This is not correct.

Re:Babies and bathwater

[Anonymous Coward]

I'm not sure why so many Slashdotters are so opposed to software patents as a concept.

It is the stifling and encumbering effect of the patents that shows to be the majority of the problem (software and non-software patents). The patents are granted to specific code or implementation and then applied to a broad base, infringing is usually less about using the patented code and more about the concept having been used.

Add to that the duration of a patent and you've managed to stifle innovation for a long time. A patent is to give an inventor a chance to make money from his invention. How long is long enough or how much money should an inventor make before a patent expires and becomes public?

But can't we do better? Can't we find an "obviousness" test that works?

Yes, and it has been proposed and, for the most part, ignored. Patents are reviewed and granted by non-practicioners and this is the problem (software and otherwise). While a software algorithm may or may not be obvious to a software programmer it isn't obvious in most cases to a patent office worker.

Re:Babies and bathwater

[Late Adopter]

Yes, but none of that answers the actual question GP was asking.

Is it useful to society to allow patenting of non-obvious algorithms that accomplish new things in new ways? We certainly want to see the development of these things, so is this the right way to encourage it, or is a funding model like basic research more appropriate? Or should we leave it entirely to the private market and see what comes up incidentally through the development of new products and services?

I don't think patents are the way forward here, but that doesn't mean it's a stupid question to ask.

Re:Babies and bathwater

[Anonymous Coward]

Let me turn it around the other way. Why do clever algorithms "deserve" a patent?

Personally, I'm much happier allowing the "inventor" of an algorithm to simply productize it. There is absolutely no need to give them a monopoly on the algorithm. They already obfuscate the code*, so it works perfectly well as a trade secret.

If someone who discovers a clever algorithm deserves to profit from it, why does the second (or subsequent person) who discovers it not deserving of the same profit? And if multiple people can discover the algorithm, resulting in no special profit, perhaps the algorithm wasn't so clever after all.

It's not that a test for "obviousness" is needed. We already have it. If I can't figure out how to implement it, then it's not obvious and doesn't need the monopoly of a patent. If I can figure it out, then it shouldn't be patented.

* I'm a free software advocate, so I am opposed to obfuscated code. However this is because I believe that an open source approach is more beneficial for everyone involved. In this case patents aren't desired anyway. So it really is the case that patents exist for obfuscated code.

Re:Babies and bathwater

[winwar]

"I'm not sure why so many Slashdotters are so opposed to software patents as a concept. To my mind, the problem has been that the "non-obvious" requirement has been ignored or interpretted in such a way as to render it meaningless."

I think your second sentence answered your first :)

In any case, what's the useful purpose of having a patent on something that is copyrighted? Especially due to the permanence of copyright.

Aside from stifling innovation, of course...

Re:Babies and bathwater

[Jason Levine]

I'd point out that software is covered under copyright. If I make a great new program and you copy it, I can sue under existing copyright laws. Giving that program patent protection "protects" it twice which isn't needed and merely reduces competition. Instead of you needing to write, from scratch, your own competitor to my "great new program," you're locked out of the market because it is patented.

Add to that the vast number of patents that are too vague, aren't enforced until a technology becomes popular (aka patent trolls), or just cover some mundane thing done "over the Internet" or "using a computer," and you can see why people don't like software patents.

Re:Babies and bathwater

[uid7306m]

    Well, most patents are that way. Most patents are things that are cranked out on demand to satisfy some corporation. Many of mine fall into that category.

    But, not all. I'm quite proud of a few of them, and there weren't other people doing the same thing at the same time. And I've seen a few inventions (not mine) that are really quite impressive. So, you are certainly over-generalizing.

    As for your assertion that "patents are fundamentally based on the assumption that ... a particular invention is unique to a particular inventor". Well, I don't know where that came from. I'd rather think that patents are based on the assumption that if you give people incentives to invent and to commercialize their inventions, then you'll get more interesting products.

    That last bit may or may not be true -- you certainly get more inventions, but whether you end up with more interesting products or not is a good question. One that should be settled by some kind of research and certainly cannot be settled by bare assertion.

Re:Babies and bathwater

[Anonymous Coward]

All software is made of algorithms | All algorithms are combination of other algorithms | Any algorithm is math QED All software is math. Math is not patentable therefore all software isn't patentable. Software like books is copyrightable

Re:Babies and bathwater

[darkmeridian]

Bilski does not address obviousness; it addresses patentable subject matter. You cannot patent scientific laws like gravity. By extension, you cannot patent mathematical rules or algorithms. You can patent machines that make use of algorithms to control it, such as a rubber-curing device that calculates when to turn off the heat, but software is arguably a pure algorithm because it's tied to ANY machine and not any machine in particular. Thus, regardless of how novel or non-obvious the software, it is not patentable under Bilski because it cannot be patented.

Re:Babies and bathwater

[McGregorMortis]

I don't find that form of argument particularly compelling.

All physical inventions are composed of atoms. Atoms are not patentable, therefore any physical invention isn't patentable.

Same for copyright. You can't copyright the letter 'A', or any other letter. All written works are really just collections of uncopyrightable letters, and hence not copyrightable.

It makes a nice mathematical proof, but you're trying to apply mathematical rigor to a question that is not suited to that kind of analysis. It's like trying to prove mathematically that murder is wrong.

Re:Babies and bathwater

[Chirs]

"There are some really clever algorithms out there, though. Algorithms that are not at all obvious, and really advance the state of the art. If Quicksort was invented today, wouldn't it deserve a patent?"

That is akin to asking, if I invented calculus today, wouldn't it deserve a patent?

We've all agreed that algorithms are not patentable. Implementations are however protected under copyright, so if I come up with a particularly clever implementation of quicksort then it's covered, but someone else can implement it a different way.

I think this is actually similar to patenting physical objects...you don't patent a "machine to do X", you patent this specific machine to do X, consisting of these parts, that operates in this way. Someone else is free to come up with a different way to accomplish the same end goal.

Re:Babies and bathwater

[AceofSpades19]

The reason inventions in the real world can be patented is because you can't copyright a physical object, for example, you can't copyright a car, you can trademark the name of the car, but you can't copyright the actual car. Software, on the other hand, can be patented and you can copyright it, which I think is too much. I think we should just be able to copyright software, not patent it.

Re:Babies and bathwater

[j. andrew rogers]

I'd point out that software is covered under copyright. If I make a great new program and you copy it, I can sue under existing copyright laws. Giving that program patent protection "protects" it twice which isn't needed and merely reduces competition.

This is incorrect, in that the same argument applies to all patentable material. Patents apply to abstract processes ("algorithms"), copyrights apply to implementations (e.g. "software"). The abstract chemistry for producing a chemical output is an algorithm with no physical implementation and eminently patentable if novel, being a traditional subject of patents for centuries. The creation of an implementation of that algorithm is protected by copyright, and worth quite a bit of money in fact. This is indistinguishable from the case of algorithm patents in all important ways, up to and including the fact that the chemical process algorithm is a purely mathematical construct that only produces effects in implementation.

Re:Babies and bathwater

[cdrguru]

The problem with simple copyright protection is that it applies to one instance alone. Sure, you can copyright your implementation. But my implementation, modeled completely on your implementation is not proected. I can copy substantial portions of your code, if I can get them, as well and there is nothing that can be done about it legally.

About the only thing copyright protects is stealing a copy of the original and redistributing it. Independently recreating it doesn't count. This isn't any sort of competition, this is a lot closer to theft. But over and over again for the last 50 years or so it has been proven that copyright does not protect against this.

Re:Babies and bathwater

[Anonymous Coward]

The protections are different. If I patented the "Spreadsheet" someone else could not create a spreadsheet program without violating my patent. However if it was only copyright protected and there was no patent. You are free to create you're own spreadsheet using code as long as you didn't "copy" any my code.

Huge difference.

Re:Babies and bathwater

[Anonymous Coward]

First of all, if you copy substantial portions of code, as opposed to producing the same code as the result of a clean-room reverse engineering process, it's obviously a copyright infringement. Whether you are suing for patent violation or copyright violation, in either case you have to study the code to determine the degree of violation, and detecting an actual copy is a lot more straightforward than detecting a reimplementation of the same ideas. Second, the idea that independently re-creating a product is not "any sort of competition" is on the face of it ridiculous. The very basis of competition is doing the same thing as others, only better. Artificial barriers to competition should never be allowed to stifle our progress.

Double Edge

[duanes1967]

This is really a tough situation. Consider the CODEC. It is primarily a series of mathematical algorithms, but is quite complex and provides a function never before found. This is the brunt of intellectual property. We have moved beyond mechanical devices to the point that the device is not unique, but it's application is. On the other hand, what if the patent on a pencil covered the output from the pencil? In my opinion, a codec is definitely a process that is non-obvious, while Amazon one-click purchasing is a natural evolution. I have a device and software that I want to patent that falls into between "Duh-Why didn't I think of that" and "Holy Sh#$, that's awesome". While not obvious, it is not rocket science but no one has come up with anything like it yet. It is not merely and extension of current ideas. The device itself is only required in some situations in which an adequate general processor is not available (ie, stand alone operation). In the case of Dealer Track, I think that computer based credit application is simply an evolution of computer based forms processing. There is nothing new or non-obvious here.

Re:Double Edge

[SirGeek]

I have a device and software that I want to patent that falls into between "Duh-Why didn't I think of that" and "Holy Sh#$, that's awesome".

I think most people would say, THAT is patentable (at least the device piece). No one says that a device that is unique shouldn't be patentable, just algorithms should not be.

I don't think people are against a device with a specific "implementation" of an algorithm being patentable.

Re:Double Edge

[rgarbacz]

I am sorry for poking a stick into an ant mound, but isn't it better to talk about the "copyright" instead of "intellectual property". The latter sounds sort of like the "new speech" from 1984. How can something intellectual be a property, e.g. a "car" is a property, but an "idea"? How can one "show" his idea to someone and say, now give it back, because I need it to go home.

But still, am not a native English speaker, there are different words for a property as a "car", and e.g. an "intellectual property" as an "intelligence" in my native language.

Re:Double Edge

[Dread_ed]

"In the case of Dealer Track, I think that computer based credit application is simply an evolution of computer based forms processing. There is nothing new or non-obvious here."

Dealertrack essentially copied interface components and functionality already developed and in long use by automobile manufacturer's banks(GMAC, Honda financial services, BMWFS, etc.) The main differences I see with Dealertrack and say BMW's Infobahn website is Dealertrack displays the credit information and allows the user to send it to many different banks instead of just one.

I think the strength of their market share is directly proportional to the striking similarity of their system to what dealership finance personnel have been using for years through their captive finance sources. Prior art, anyone?

Not so fast Software Patent Haters

[Anonymous Coward]

Before all you software patent haters get all excited (oooops too late for that) you should know that the reasoning of the judge referenced in the original post is flawed. For example, The BPAI just found this claim patentable:

23. A computerized method for identifying a solution to address exposed performance gaps of a company in a specific industry, comprising:

first identifying a plurality of operational metrics for the specific industry, wherein the operational metrics includes a factor used to measure health or viability of a generic company in the specific industry, wherein the specific industry is a grocery store industry, wherein the operational metrics include at least one of a rate of inventory turnover and a number of customers per day;

assembling a set of solutions for application by the specific industry, wherein the set includes one of a decision, an action, a product, and a service;

assessing impacts of application of the set of solutions on the operational metrics for the specific industry, wherein the assessing includes determining which of the set of solutions has a negative impact on an operational metric and determining which of the set of solutions has a positive impact on the operational metric;

after identifying, assembling, and assessing, then comparing a current operational performance of the company to an operational performance of another company within the specific industry to obtain at least one performance gap, wherein the operational performance includes a performance of a company based upon the operational metric for the specific industry;

identifying a solution based upon the impacts to address the exposed performance gaps, wherein the solution is at least one of a decision, an action, a product, and a service that impacts a problem in a positive manner; and

outputting the solution from the computer system.

http://www.1201tuesday.com/1201_tuesday/

I'll try to define fixed-purpose processors

[tepples]

However, it really irks me that someone in the EU bothered to distinguish between a general purpose processor and a fixed-purpose processor.

General-purpose processors include commonplace mathematical operations, such as addition, multiplication, square root, etc., as machine instructions, and they can act as generic linear bounded automata. "Fixed-purpose processors" to me looks more like an MPEG decoder ASIC. It has machine instructions for things like "decode variable length buffer" or "apply a discrete cosine transform", and a comparatively small microcode for parsing the bitstream that can't be reloaded.

Re:I'll try to define fixed-purpose processors

[ledow]

And, again, how does that differ?

Even an MPEG ASIC has to do *all* of the above actions, and a general purpose CPU have specialist machine instructions for ALL sorts of stuff. And you *know* that if you "misuse" such an ASIC, you could easily turn it into a GP processor (much like people have, and industry now supports, with graphics processors) without any hardware modifications - just feed it a stream designed to do what you want it to do. If it is at all physically possible to make it in any way simulate a Turing machine, then you just made a GP processor (and thus, all patents on it would therefore be invalidated instantly).

There is a distinction between "programmable" and "not", but that's it... and virtually every device is "programmable", just not necessarily in a simple way (JTAG, reprogramming EEPROM's, re-laying a FGPA, flicking switches, soldering links, etc.). There's really no distinction apart from *intention*, though. If you don't *intend* something to be programmable or not, that's hardly a basis for issuing a patent and an unreliable test.

What about if, in 20 years time, the original hardware manufacturer can't buy an Intel 8088 and thus decides to just slap in a general purpose processor with some kind of emulation (or an ICE, in other words) in any of those products that they service... that immediately invalidates patents on that machine. Whether or not it matches with your opinion, as a legal test *all* definitions of such things just stink. Thus, it's stupid to even *try* and categorise such devices/patents until someone comes up with a pretty damn definitive test. That means that either: Nobody distinguishes between GP and SP processors in patent applications, with the ramifications of that, or that *software* patents become invalid. Either option is fine. Middle-ground, however, sucks.

Re:I'll try to define fixed-purpose processors

[tepples]

Even an MPEG ASIC has to do *all* of the above actions

My point is that an MPEG ASIC has an instruction set specifically designed for MPEG encoding, with specialized hardware for actions specific to image decompression, such as DCT, macroblock addition, and Huffman decoding. A general-purpose CPU or GPU doesn't have these; instead, it has more generic instructions that need to be composed into the various operations, like "shift", "index", and "SIMD dot product of four or fewer values" if you're lucky.

And you *know* that if you "misuse" such an ASIC, you could easily turn it into a GP processor (much like people have, and industry now supports, with graphics processors) without any hardware modifications

GPUs crossed the line from fixed-purpose to general-purpose as soon as shader hardware learned how to 1. render to texture and 2. loop and branch.

If it is at all physically possible to make it in any way simulate a Turing machine, then you just made a GP processor

Just because something can be used as a universal linear bounded automaton doesn't mean it'll be useful as one. For example, an MPEG decoder chip designed to run 60 frames per second could be turned into a CPU that runs 60 instructions per second. There's a reason that an invention has to be not only novel and non-obvious but also useful.

What about if, in 20 years time, the original hardware manufacturer can't buy an Intel 8088 and thus decides to just slap in a general purpose processor with some kind of emulation (or an ICE, in other words) in any of those products that they service... that immediately invalidates patents on that machine.

Patents would already be invalid after 20 years anyway, unless perhaps the drug lobby manages to get some sort of Cher Patent Term Extension Act passed. Besides, In re Bilski still allows the transformation performed by the machine to be patented.

Multi-touch

[Anonymous Coward]

I wonder if this will open the door to multi-touch for Android and other non-Apple devices...

Decision Text Here

[Theaetetus]

Summary points to a press release. The actual decision is available here: http://bfwa.com/docs/dealertrack.pdf (7 page pdf)

I wonder..

[Pvt_Ryan]

Would the judge be willing to go to the patent office and starting look for all MS patents and then rule on each of them?

Once finished he could then move onto other patents and clear the whole place up..

The C definition, same token on both sides.

[Xenographic]

I wasn't logged in before, GP anon was me. Anyhow, the period was the end of the sentence, not some attempt to make it into a float/string/boolean/whatever and I certainly didn't use the Python operators. It's supposed to be the same token (1) on both sides. But that's why we use formal languages that are picky about syntax and which can be checked automatically to avoid people finding weird ambiguities to question.

The theorem I was mentioning above is called Curry-Howard-Lambek correspondence (it took me a while to find all the links):

The Curry-Howard-Lambek correspondance is a three way isomorphism between types (in programming languages), propositions (in logic) and objects of a Cartesian closed category. Interestingly, the isomorphism maps programs (functions in Haskell) to (constructive) proofs in logic (and vice versa).

(Wiki links added because most people are too lazy to Google the terms they don't understand. Especially if they don't realize that they don't actually understand them.)

So even if you find some crazy language where they define != to be an equality operator or something equally unusual, software is still equivalent to math. Metamath wouldn't be possible otherwise. And as you can see, they're doing just fine.

Re:The C definition, same token on both sides.

[mounthood]

Mapping does not make them the same. If we map hopscotch to some variation of algebra, does that make the kids game math? Software is not a rose by any other name. The numerical representation of painting is just a big number in the realm of math.

Re:The C definition, same token on both sides.

[marcosdumay]

Well, hopcotch can't be mapped into algebra. That is because a physical game isn't math. If you could map it into algebra, it would be math. Also, the numerical representation of anything is just a number, I guess... But a painting isn't math, only the mathematical representation of a painting is math.

Anyay, software is math. It is completely equivalent to things like set theory, aritmetics, etc*. They are just the same thing.

* The name "algebra" isn't explict here because it has two meanings, and one of those meanings ins't math.

Re:The C definition, same token on both sides.

[Alsee]

Any possible software is, in and absolute and literal sense, nothing more than a purely mathematical function. Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of numbers. For example all word processing stores text letters as numbers. If for example a is 1 and b is 2 and z is 26, then the word cat is 3 1 20. Spell check software is nothing but a very fancy math calculation that will calculate the numbers 3 1 20 ('cat') back into 3 1 20 ('cat'), but it will calculate the numbers 3 1 1 20 ('caat') into ('cat'). The old patent for the GIF files, and the current patents for MP3 and for MPEG, they are nothing but patents on the math equations for transforming one sequence of numbers into a different (usually shorter) sequence of numbers. We usually apply the MP3 math calculations to the sequence of numbers recorded from a microphone, and we usually send the MP3 sequence of numbers to a speaker, and microphones and speakers are patentable, but the MP3 patents are patents on the pure math of calculating numbers into different numbers. The famous RSA patent for asymmetric encryption, one of the most economically important developments and wildly regarded as one of the most "genuinely inventive" software patents, even that is nothing more than a patent on the math equations for transforming on sequence of numbers into a different (encrypted) sequence of numbers. It's a patent on pure math.

You can certainly ATTACH a computer to some industrial device for manufacturing rubber or preforming other physical activities, and you can certainly patent those physical devices for preforming those physical activities, but software is indeed nothing but pure math. Software is incapable of doing anything other than elaborate math calculations changing one set of numbers into a different set of numbers.

-

Re:The C definition, same token on both sides.

[bill_mcgonigle]

Software is incapable of doing anything but mathematically transforming one set of numbers into a different set of number

Would the same principle apply then to electronic hardware? Transistor radios, Xeon processors, flat screen TV sets? They're just taking voltages of certain characteristics and transforming them into voltages with other characteristics. Sure, we hook up the transistor radio to a speaker, but that's not the core of the patented design.

If voltages, how about energy? Quantities of atoms?

Re:The C definition, same token on both sides.

[Bigjeff5]

The pure math argument against all software patents is intillectually dishonest and little more than "information longs to be free" nonsense. Information may want to be free, but it certainly takes effort to produce.

ANY patent is nothing more than a design or an idea put on paper. It is not the physical device you patent, but the design of the device. The only person allowed to use that design to produce a product is the inventor or anybody the inventor gives permission to. What is special about them is they are unique, novel, and produce some useful result of some kind.

Software should not be exempt from this, because the creation of software is a difficult creative process that falls well under the goals of the constitutional patent provisions. We need incentives to produce good software, and said software needs to be well understood in order to be improved upon for the good of society. However, because software is essentially just math for a specific purpose, the only thing really patentable is the method or structure of the math. That structure should be so novel that nobody had thought about doing things that way before.

Software is pure math in the same sense that the design of an automobile is pure math. It is written down in math, in the case of software it is even used via math (i.e. processed through the computer), but the idea behind it is often times NOT math, and the purpose or use of the software is usually NOT pure mathematical in nature. It is often not even related to mathematics. It's the idea, the design, that is patentable.

This should be as true for software as anything else. I think the problem is a lack of understanding of which parts are novel and which parts are the mathematical tools used to perform the work.

Novel methods or processes for any purpose should be patentable, regardless of how simple they are. If nobody else has done it, it should be fair game for a patent. Methods that are the essentially re-iterations of common methods but applied to software or business practices, without anything new and innovative, should not receive a patent. When your patent consists of the software equivalent of pulling trash out of a trash can and walking it to the dumpster, it should be denied. That's the case with the patent in TFA, it was simply a method of collecting data from multiple sites and displaying it in an organized way to the user. There was nothing innovative, it didn't do anything special with the data, it didn't have some new process that nobody has ever thought of to make the whole thing more efficient, it was simply data aggregation applied to financial purposes. It was very non-unique.

Re:The C definition, same token on both sides.

[HHacim]

Would the same principle apply then to electronic hardware? Transistor radios, Xeon processors, flat screen TV sets? They're just taking voltages of certain characteristics and transforming them into voltages with other characteristics. Sure, we hook up the transistor radio to a speaker, but that's not the core of the patented design.

yes but that wouldn't be math then but rather electricity. I think , then, being a physical device, would be classified as a machine and perfectly patentable. Math is an abstract formal system.Electrons are quite concrete.

Re:The C definition, same token on both sides.

[bill_mcgonigle]

yes but that wouldn't be math then but rather electricity. I think , then, being a physical device, would be classified as a machine and perfectly patentable. Math is an abstract formal system.Electrons are quite concrete.

But can't an circuit be expressed as an algorithm/function? Does burning an algorithm into an FPGA make it suddenly patentable since that's a machine? How could a competitor not violate the patent if implementing the same algorithm in his own silicon?

Re:The C definition, same token on both sides.

[Alsee]

There definitely is a challenging gray area between what is legitimately a patentable invention, and what is not. It is definitely possible to zoom in on the boundary of any definition and find challenging cases. However I'd say that difficult line and those difficult cases are no where near where the US patent office has been trying to put it.

The Supreme Court rulings give some pretty good guidance. You have to look at the claimed invention, you have to look at what "new discovery" is being claimed, you have to look at what is actually being disclosed in that claim.

If the "new invention" is being disclosed is a some "new" number or "new" calculation or a "new" math algorithm, then that is not a patentable invention. The number or calculation or algorithm is treated as old familiar prior art.

Let me illustrate what I think it means and how I think it should work. Consider a transistor. If you try to consider the electricity coming in as "information" or "a number", the the "math" that a transistor is amplification, it basically preforms a multiplication. So now someone submits a patent application on the transistor. If you attempt to read it as a prohibited math patent, then what the patent would be disclosing is multiplication, period. Well, we already know multiplication, and if the patent were "merely disclosing multiplication", that would not actually enable you to build a transistor. The patent *does* disclose something more than math, it disclosed a useful physical device. The fact that the disclosed device was useful for preforming math does not prevent it from being an invention. You can invent and patent calculators and computers. And you can invent and patent the general device FPGA.

On the other hand lets say you have some interesting "new" equation, some "new" math algorithm, some "new" software, and you simply load that into an FPGA. Well the "new" think is just math. If you disclose the math, then anyone can trivially load that math into an FPGA, or they can trivially do an automated conversion into a transistor-circuit to do that calculation and burn it into a microchip. The only creative "invention" disclosed is that you came up with some cool new math, and we have already invented devices like FPGAs who's exact purpose and value as an invention is that they can and do carry out any and all possible math you throw at them.

And based on that, I would say that taking that non-patentable algorithm and permanently burning it into an FPGA does not constitute a patentable invention. Or taking that algorithm and systematically translating it into transistor array or other circuit layout would not constitute an invention.

I will certainly agree that reasoning can be pushed to challenging cases where it is challenging to draw the line. I will even grant that it leads to a result that in some cases an identical patent application might be patentable in the 1950's and not patentable today, even if the thing being disclosed was just as novel today. The reason for that being that in the 1950's the state of the art was different, and we were discovering new ways to arrange transistors as physical objects to a achieve physical effects like creating the electrical oscillations to sweep the electron beam in a television. Today the state of the art is entirely different. Finding some way to connect transistors to crate a novel unexpected effect would still be patentable. However that is rarely the case today, today we generally use transistors as information processing elements and calculating elements. The state of the art is that we typically treat electrical signals as information. The state of the art is that we know how to translate essentially any equation/calculation/math_algorithm into a sequence of transistors preforming that calculation. The state of the art is such that there is absolutely nothing novel or unexpected in that. All numbers, all equations, all algorithms are considered to be a familiar part of prior art, and you cannot obtain a patent fo

Re:The C definition, same token on both sides.

[Alsee]

The pure math argument against all software patents is intillectually dishonest

You are right, they are wrong, what they are saying makes no sense to you and you don't understand it, therefore they are lying.

little more than "information longs to be free" nonsense.

Ah yes, you're a pinko commie atheist.
There! Not only have I proved you're wrong and stupid, but I've proved you're evil too!

it certainly takes effort to produce.

A novel takes effort to produce.
If you think a novel is patentable, you are wrong. Period.
If you think a novel is patentable, then you clearly don't know anything about the law.

ANY patent is nothing more than a design or an idea put on paper.

Not all designs are patentable.
Not all ideas are ideas for patentable inventions.

It is not the physical device you patent, but the design of the device.
blah blah blah
blah blah blahblah

Pointless yammering about devices.
There's no argument here about device patents.

You apparently have never read the patent law, you apparently haven't read any of the Supreme Court rulings (or any other rulings) on patent law, and you appear to have no grasp of the actual issue that some people are attempting to have a reasoned informed debate over. Here's a hint: it's not about device patents.

I'll give you another small hint: it's about process patents.

Software should not be exempt from this

The US Supreme Court has explicitly ruled that algorithms are exempt, and MUST be exempt under the US constitution.

If you disagree with the US Constitution, then I guess you should be arguing to change the Constitution.

If you disagree with the Supreme Court's interpretation and reasoning, well you can certainly argue that. I happen to agree with what they said on that point, but I might be interested in listening to your counter argument to the Supreme Court if you have a informed and well reasoned argument against the Supreme Court ruling.

The argument some people are engaging in is whether or not software is algorithm. All (or effectively all) mathematicians with any involvement in software state that software is algorithm, and that software is a field of math. Most programmer in general, and nearly all programmers who have studied the theory behind software or have studied software in relation to math, agree that software is algorithm and that it is a field of math.

The people who are relatively well informed about patent law and arguing that software is patentable, arguing that software is not a field of math, arguing that software is not algorithm, they are generally not "lying". They are generally sincere in their position and argument. The lower courts and patent lawyers who have taken that position are generally well informed about the law but the generally have little or no grasp of software, they generally little or no grasp of higher math theory and its relationship to software. And because of that misunderstanding they at times come to incorrect conclusions when attempting to apply patent law to software.

We need incentives to produce good software

Are you suggesting that copyright does not, or should not, exist?
Or suggesting that copyright does not, or should not, apply to software?

If you are denying the existence or legitimacy of copyright, or denying the existence or legitimacy of copyright on software, that would be a pretty radical position.

However, because software is essentially just math for a specific purpose, the only thing really patentable is the method or structure of the math.

Ah good.
You are confirming the legal statement that software is not patentable under current law. You are confirming that software is not patentable short of overturning standing Supreme Court law or amending the Constitution.

He is correct

[Anonymous Coward]

Anyone that understands how a computer works will realize that at the machine code level, everything that a computer does is binary math. Since all programming languages have to be translated (compiled) into machine code at some point, there ARE NO PROGRAMS that are not based on binary math.

Besides, computer programs are much more like a book than a physical product or device, therefore should not be patentable. The whole patent/copyright thing has been grossly and extremely distorted to protect corporate profits and stifle innovation, the exact opposite of what patents and copyrights were originally intended to do!

A wheel isn't an atom, all software is math.

[Chris Burke]

At a fundamental level the physical world can be described with chemistry (atoms, physics etc) - and since you can't patent atoms (as far as I know) anything made from them can't be patented - which is everything patented including software because its just bits of atoms recorded in magnetic medium which can be described using chemistry.

There's a huge difference between "can be described by" and "is". There's a difference between "composed from" and "is".

You can't patent an atom, but a wheel isn't an atom, it is made from atoms. Atoms are the elements of the periodic table, and that's it. A thing built with atoms isn't called an atom. This isn't like math. Math is not just the axioms and basic operators. Math is everything you can construct using those axioms and operators no matter how complex. Two atoms together is a molecule, no longer just an atom. Two pieces of math together is still math.

And while the motion of a thrown ball can be described through Newton's Laws by a parabola, a thrown ball isn't Newton's Laws and physics equations. Software is, literally, a symbolic representation of math. It's not described by math, it describes math. In a machine-readable format, but that makes no difference it just means that today our computers, the thing that execute the algorithms described, are machines and not people.

There's no reductionism going on whatsoever. The most complex piece of software in existence does not need to be reduced in any way to call it math. Because that's literally what it is. In the exact same way that "a^2 + b^2 = c^2" is literally math, as in abstract symbols representing mathematical concepts, in the same way that the iterative algorithm of Newton's Method is math, every piece of software is by itself math and nothing more.

Knuth is 100% right here, no surprise since this isn't a tough one. Software is math. A falling weight isn't math; software that describes how to calculate its position at a particular point in time is. Get it?

Mathematicians don't need patents.

[Xenographic]

> I often see the opinion that "mathematical software" should not be patentable, but "non-mathematical software" should be. I appreciate the theoretical arguments on this subject, but the practical ones seem to point the other way.

What does "mathematical" mean to you, exactly? Seems like you think it means that the software has to use a lot of math you've never heard of to do something complex. Now, I can at least respect the argument that very innovative new processes might merit legal protection, though I think it's a terrible idea because it's unnecessary and it carries a high cost for society. Mathematicians can also make life difficult for you. If I create an equivalence relation between something patented and something not patented, what does the patent control? Have I destroyed the utility of the patent, or does the patent swallow up my "invention" too?

But back to the original point, the division between "mathematical" and "non-mathematical" software is the result of fuzzy-headed thinking by people who don't know what math is. Software is equivalent to math and that link describes how you turn programs into math (and vice versa). There's no such thing as non-mathematical software because there's no such thing as non-mathematical math.

Now I know there are some people, especially that guy at IP Watchdog who was in the news quite a while ago, who think that because they can do a few fancy integrals, partial derivatives, and linear algebra, they know all there is to know about math. But they totally ignore the stuff that's relevant here and probably don't even know what type systems or proof calculi are. Suffice it to say that anyone who thinks they know all there is to know about math is wrong.

Re:Mathematicians don't need patents.

[Raenex]

The physical world is described by math too. You might as well say that the because the physical world can be modeled by quantum physics, then it's math all the way down.

I'm against software patents, but I would argue against anybody who calls a random software developer a mathematician.

Re:Perfect

[gnupun]

Happy because you can now use their invention for free?

Anon

[Anonymous Coward]

software is akin to a book.

no you cant patent math, just like you cant patent words or sentences, but write a book-worth of those and you can copyright it.

the same seems to be logical to apply to software.

So which part of the correspondence is wrong?

[Xenographic]

> Not all algorithms are math; most algorithms use some math.

That statement is false. There's an isomorphism between computer programs and mathematical proofs. Algorithms are math.

Re:So which part of the correspondence is wrong?

[gnupun]

But is a program that stores and displays recipes, math? No. That's more analogous to a notebook containing recipes than math. Is printf("Hello, world\n") math or simply a command to a machine?

Software is technology, and technology uses math but is not math by itself. Software uses math and electronics to accomplish its tasks. Electronics uses math and physics to accomplish its tasks. Neither software nor electronics nor physics are math -- they all use math.

Re:So which part of the correspondence is wrong?

[EllisDees]

>But is a program that stores and displays recipes, math?

Yes. It is math. The program itself is exactly the same thing as math. It is a mathematical process. The commands you type to create the program are not.

Re:So which part of the correspondence is wrong?

[gnupun]

Yes. It is math.

If the entire program is math, then you agree that everything it contains is math. So if the program contains a recipe to bake pizza or make pankcakes, then you have just postulated that the procedure to make pizza or pancakes is math, which is ridiculous.

It is a mathematical process.

Correction, it uses mathematical processes... big difference. All techonology uses math, it is not math by itself. Just as when you type 2 + 2 in your calculator, you are using math, you don't transform from human into math.

Re:So which part of the correspondence is wrong?

[EllisDees]

>If the entire program is math, then you agree that everything it contains is math. So if the program contains a recipe to bake pizza or make pankcakes, then you have just postulated that the procedure to make pizza or pancakes is math, which is ridiculous.

If the description is stored in a computer, that description is nothing but a long string of 1s and 0s. Any recipe, or song, or movie can be exactly represented by some number. Any changes to that representation is also done by - take a guess - math. If you alter your cake recipe in the computer, the initial and final form can be gotten by using nothing but simple arithmetic. All that a computer can do is math - it's right there in the name. It computes.

The procedure to make a cake applies to the real world, it's storage in a computer is math.

>Correction, it uses mathematical processes... big difference. All techonology uses math, it is not math by itself. Just as when you type 2 + 2 in your calculator, you are using math, you don't transform from human into math.

I'm not sure what you're trying to say here. The program that the calculator is running to calculate 2 + 2 is itself math. How this makes a human into math I have no idea.

Bilski not such a big problem for software patents

[JamesBarger]

An article by a U.S. patent attorney says Bilski doesn't really present an obstacle to software patents, if the patent attorney understands software the way a programmer does. The article explains that one of the keys is to "define the process as it is done by a computer." You just can't refer to it as "software." And, you need to "protect software in an indirect manner by protecting the computer itself, and by protecting a computer implemented process." This is why the patent law world needs more former programmers with law degrees.

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It's not really about obviousness

[Cajun Hell]

I'm not sure why so many Slashdotters are so opposed to software patents as a concept.

Because all Slashdotters (100% of them) use the Internet.

Networks are about communication and interoperability. Software patents got a lot of attention, starting in 1989 when the LZW thing came up in DDJ, because they prevent interoperability. You were not allowed to implement a side of a conversation, such as decoding a GIF.

Quicksort can be replaced with other sorts; nobody really needs Quicksort to get their project working. A Quicksort patent holder would have an advantage in his apps, not a monopoly. If patents had never been applied in a way where they impacted file formats, codecs, and protocols, then hackers would see other people's patents as something that merely gave them competitive disadvantage, rather than being a complete exclusion.

I don't mind being told the other guy gets a leg up, especially if he was clever and deserved it. So I'm playing with a handicap? Fine. Bring it on! I might show the other guy a thing or two.

I do mind being told that I am simply not allowed to compete at all, and this will be enforced by government courts.

My own fucking government, demanding that a market not exist. That pisses me off. (And this is in America, of all places. Doesn't exactly fit the Free Market stereotype, does it? They told me the Commies lost the cold war, so how did I get an anti-business government? How did it happen that the so-called "socialist" countries got this right when we got it wrong? I think somebody lied to me.)

Competition good, monopolies bad. That's pretty simple.

Hardware implementation of CODEC, yes

[Anonymous Coward]

Not software.

You can't patent the moving of household items.

Yet people still pay other people to help them move house.

If there had been no digital video compression, there would have been no DVD and the reduction in cost by the use of this format instead of laserdisc or tape would not have been realised. Therefore, MPEG compression would have been paid for by the movie industry to reduce their costs and that renumeration would have been enough to get the compression they were willing to pay for done.

All that would have been needed was a contract to perform a job "create a movie compression so a 720p digital movie would fit in 2GB/hour or less". No patent needed.

Re:Hardware implementation of CODEC, yes

[shutdown -p now]

You can't patent the moving of household items.

That's not the question. The question is, why you can't patent a specific optimized method (algorithm!) of moving household items that is extremely efficient, if you happen to come up with it first, and if it is really not at all obvious.

just to be contrarian

[Anonymous Coward]

infinite sequences like 0.99999[repeating] don't have a last digit by virtue of being infinitely long (if an infinite list had a last element, it would be a contradiction in terms, because part of the definition of infinite is that for every element x, there is a successor of x).

Not quite. Every successor ordinal has a last element. For instance omega+1, the second infinite ordinal, has a last element with infinitely many predecessors.

The definition of infinite is "can be put into a one-to-one correspondence with a proper subset of itself".

One might as well claim that pi is exactly 3.

Pi is 3. To the nearest integer. Hey, if your computer doesn't have infinite memory, then you have to cut the decimal representation of pi off somewhere.

For some values of "algorithm"

[Shin-LaC]

* Software IS a series of algorithms strung together (as an aside, a series of algorithms interacting is itself an algorithm)

Actually, that depends on what you mean by "algorithm" and "interacting". In computer science, it is common to employ a definition of "algorithm" that makes it equivalent to what a Turing machine can compute (see the very first sentence of that article). In this sense, an algorithm is provided its input at the start of its execution, processes it deterministically, and produces its output when it terminates (if it terminates, of course).

While this is a very useful definition in many situations, it does not describe the computer and the program I'm using to write this comment right now. The reason is that this is an interactive system, engaged in ongoing communication with a human (me). This is not a batch operation that transforms input into output (the equivalent of a mathematical function, or of a Turing machine): instead, the program waits for me to provide input, and provides output itself, at several steps during its execution. (Turing would have called this an oracle machine, with me as the oracle.)

Each keypress is processed algorithmically and an output is produced, but the combination of those algorithms in an event loop is clearly not an algorithm itself: it takes input and produces output at several points during its execution, and it does not even need to terminate to be useful (in fact, if the program did terminate while I'm writing this comment, it would be considered a failure!).

Therefore, there is at least one very common and useful definition of algorithm such that

• a series of interacting algorithm is not necessarily an algorithm, and
• many useful and common computer programs are not in fact algorithms.

That said, I do believe that software is math and that software patents should not be considered valid.

The question is where's the progress

[Anonymous Coward]

Patents are gifts from your government rewarding progress in the Natural realm.
Copyrights are gifts from your government rewarding progress in the Human realm.
all sofware is exclusively a semantic construct, and therefore limited to the Human realm.
A very good test for a patent is to have an actual example, demonstrating the achieved progress, delivered with the patent application.
Wheather it is a specific bend of wire that grips, or a specific chemical reaction that produces a novel compound (or generic compound in a novel way) a patentable achievement is always understandable by example alone. Anything that requires a shared language, society, civilization ,, etc is suitable only for copyright.

Avoiding proof with fuzzy thinking?

[Xenographic]

> But is a program that stores and displays recipes, math?

Yes. The recipes all correspond to binary numbers (as does any other data). The search function in it is a mathematical function that maps queries to results. The UI maps the binary numbers from sensor devices to the numbers that represent the on-screen output.

Like I said, you don't know what math is, you only think you do. Numbers are no different than any other precise form of information. You're trying to ignore a mathematical proof by relying on your incorrect understanding of what math is.

If you really want to debate something, you'd have to say that perhaps mathematics shouldn't automatically be unpatentable by statute. Frankly, mathematics being unpatentable is one of the few parts of patent law I completely agree with. I just wish they'd realize that math IS software and software is math.

There's no clear distinction between the two. For any stupid "non-mathematical" program you come up with, we can translate it back into pure math.

Tho it's Thcheme you want

[tepples]

FAIL for not using some variant of LISP to define the != symbol.

So it's Scheme you want. Did you mean =, equal?, eqv?, or eq??

Software is math, but it is not only math.

[radarsat1]

I am not for software patents, but I hate to see specious arguments being made. An argument being made in many posts here is that software is math, and thus not patentable.

I'd just like to look at that argument. Is there no difference between software and math? Math is purely thought. Software is executed on a machine, and communicates with the world through input and output peripherals. It seems to me that this makes a huge difference.

Maybe this argument is equating "software" with "algorithm". The latter is math. The former is a machine. That is to say, for any software, there is an equivalent hardware machine that can execute the same algorithm.

Since hardware can be patented, isn't it specious to claim that software cannot be, since software can be implemented in hardware?

Software ceases to be "just math" as soon as an interface between the algorithm and its environment is constructed. (Peripherals.)

For example, I spend a lot of my time writing algorithms for robotic equipment. So, I do math. I write algorithms. But these algorithms, while interesting in themselves, are only useful when connected to sensors and actuators. It becomes part of the machine. The machine does something completely different if I change the software. The machine and the software depend on each other, you can't change one or the other without changing things drastically.

The machine by itself does nothing. When programmed, it becomes a useful machine. I am tempted to claim that the machine is not really a machine until it has software. Thus, the software is an inherent part of the machine. In fact the expression of the algorithm as software, instead of building it into the machine as hardware, is merely for convenience. Its existance as software (math) as opposed to hardware (real material thing), is not fundamentally necessary.

Looking at this from the perspective of mechanics. Mechanical engineers don't only work in the shop. They spend a great deal of time figuring out the logic of how a machine will work before building it. This depends a great deal on physics. They must take into account hydrodynamics, friction, rigid body mechanics, etc. They figure this all out on paper, conceptualize a good design, and then build it to test their idea in the real world. They might even simulated it in software beforehand.

This is math. But they are building a physical, real machine! They are not programmers! What is the difference between software programming, and mechanical design? They share so many concepts.

So.

I think there are other perfectly good reasons for claiming that software should not be patented. But to claim is because software = math is not reasonable or convincing. Everything is math. Most things are not only math, if they also do something and interact with the world. This includes software programs running on a computer.

But the PTO says Bilski doesn't apply to software

[Anonymous Coward]

http://www.uspto.gov/web/offices/com/sol/2007-1130uspto_opposition_to_certiorari.pdf

The above link is a document submitted to the Supreme Court by the U.S. Patent and Trademark office in regard to Bilski. It begs the court not to look behind the curtain at the nonesense in Bilski.

Page 14 includes the following, I highlight the portions to which I would draw your attention thusly : --portion--.

In any event, --the court of appeals emphasized that its decision in this case --does not-- address the application of the machine-or-transformation test to --computer software--, data-manipulation techniques, or other such technologies not involved in petitionersâ(TM) risk-hedging claim.
See, e.g., Pet. App. 25a n.23 (âoe[T]he process claim at issue in this appeal is not, in any event, a software claim. Thus, the facts here would be largely unhelpful in illuminating
the distinctions between those software claims
that are patent-eligible and those that are not.â); id. at 28a (âoeWe leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or
when recitation of a computer suffices to tie a process claim to a particular machine.â); id. at 29a (indicating that the court will take âoea measured approachâ in applying the machine-or-transformation test to electronically
manipulated data).
Thus, even if petitionersâ(TM) policy arguments had merit, they are essentially irrelevant to the proper disposition of this case because petitionersâ(TM) patent application involves none of the frontier technologies on which the petition dwells. Indeed, the abstract market-hedging
scheme that petitioners seek to patent is ineligible under any conventional understanding of Section 101. This case accordingly provides no opportunity for the Court to address the problems that may arise in applying Sec

          Accordingly, even the pro Bilski decision PTO says Bilski doesn't apply to software and it would follow that the discussed court decision is wrong. Therefore, you should all expect this decision to be overturned.

I get the point

[tepples]

It's simply untrue that in Python 1 != True:

I get the point. But I can't edit my old post. What do you expect me to do.